Exchanging in the New World of Section 1031

By Dustin Cutlip

Many of you may be familiar with the term “like-kind” exchange, but are you familiar with how it can benefit you or your business? Or how the Tax Cuts & Jobs Act (TCJA) impact exchanges?

Overview

In general, Sec. 1031 of the Internal Revenue Code allows certain appreciated property transactions to be structured in a way that defers gain recognition to a future tax year. By doing so it allows taxpayers to keep 100% of capital, or equity, invested without losing a portion to foot the tax bill. This can be quite favorable compared to a sale which could trigger a tax liability at the time of sale.

However, not all property is eligible for deferral treatment under Section 1031. Property that is held for investment or used in business is eligible when exchanged for property of “like-kind.” The term “like-kind” may not be as rigid as you might think, and for those in the real estate industry the term actually provides a great deal of flexibility. For example, an apartment building doesn’t necessarily have to be exchanged for another apartment building, it can be exchanged for a warehouse or office building.

Years ago “like-kind” exchanges were structured by simply having two owners swap “like-kind” properties simultaneously, but in today’s world that is a very uncommon occurrence. It is far more common now to have non-simultaneous exchanges, while using the services of Qualified Intermediaries (QI). A QI is a third party facilitator who handles the paper work and compliance matters related to the exchange. With the help of a third party QI, non-simultaneous exchanges are generally structured in two ways: 1 – Deferred exchange – which is when you relinquish your current property and then identify a replacement property or 2 – Reverse exchange – which is when you purchase a replacement property and then relinquish your current property.

Time and Money

There is an old saying time is money, and that is certainly true with “like-kind” exchanges. A strict timetable is applied for both “deferred” and “reverse” exchanges that must be followed in order to comply with the rules under Sec. 1031. In general, both types of exchanges follow a 45 / 180 day rule. In a “deferred” exchange a replacement property(s) must be identified within 45 days of relinquishing the original property. Then the purchase must be completed within 180 days of relinquishing the original property. In a “reverse” exchange the relinquished property must be sold within 180 days of purchasing the replacement property. Thankfully a good QI will help you successfully navigate these deadlines to ensure compliance.

As potential replacement properties are identified in a “like-kind” exchange it is very important to analyze your coverage limits and determine how much you need to invest in a replacement property in order to ensure the exchange is completely tax deferred. It is common for taxpayers to overlook this step and end up with an exchange that is partially taxable when they were expecting a full deferral. As a general rule of thumb the purchase price of a replacement property must at least be equal to the sales price of the relinquished property while maintaining an equal or greater equity spread.

Let’s use some simple numbers to demonstrate. If you are selling a warehouse for $1,000,000 that has a $500,000 mortgage (equity of $500,000) you must find a replacement property with a purchase price of at least $1,000,000. In addition you must maintain at least $500,000 in equity, meaning no more than $500,000 of the purchase can be financed with debt (assuming a purchase price of $1M). If a replacement property is purchased at a price lower than what the relinquished property sold at, or at an equal price but financed with more debt, the exchange would still be valid but not fully tax deferred.

TCJA Impacts

During the initial stages of the TCJA, there was some concern that “like-kind” exchanges would be completely eliminated from the tax code. As it turns out, “like-kind” exchanges are still part of the tax code, but personal property is no longer eligible for “like-kind” exchange treatment. This change became effective for 2018 going forward. As a result of this change taxpayers should be mindful that the exchange of business use autos, or other business use personal property, could now have an immediate tax consequence attached to the exchange.

While business and investment use real estate are still eligible for “like-kind” exchange treatment, any tangible personal property, such as furniture, which is sold with such real estate would have to be separately reported and the gain from the sale of the personal property would be realized in the year of exchange. Taxpayers should be mindful of this change as they negotiate the allocation of the sales price in future exchange transactions.

Conclusion

In theory, a “like-kind” exchange seems quite simple – relinquish property A, replace with “like-kind” property B, and defer tax to a future year. In actuality the process can be very complex and the rules must be followed carefully in order to achieve the desired outcome without any unforeseen consequences.

It is always best to consult your tax advisor prior to entering into a “like-kind” exchange, and that is where we come in! Please contact your Snyder Cohn advisor for more information!

IRS Online Tool for Estimating Tax Withholdings

The IRS has published a new online tool for estimating tax withholdings. This tool – which is primarily designed for taxpayers who get all or nearly all of their taxable income from wages – is meant to help employees ensure that they’ve had enough withheld. After the Tax Cuts and Jobs Act, new withholding tables were issued, and many employees found that when they filed their 2018 tax returns, they either owed tax or had substantially smaller refunds than they were expecting. The estimator is available here: https://www.irs.gov/individuals/tax-withholding-estimator.

We’ve previously discussed the importance of regularly reviewing your withholdings on a regular basis. Clients with substantial amounts of non-W-2 income may want to consult us about either having additional withholdings or paying quarterly estimated tax payments.”

IRS Announces Changes to Hardship Distribution Rules for 401(k) Plans

By Joe Bishop

Those who participate in 401(k) plans and come upon an immediate and heavy financial need have the option of taking a special kind of distribution from their retirement account. Distributions of this nature are called “hardship distributions”, and as you might imagine, they are subject to several rules and restrictions by the IRS. These rules have remained fairly consistent for the past several years, but changes will soon be coming that must be considered by organizations that sponsor retirement plans for their employees.

Before we get into the specific changes, what follows is a general overview of the long-standing policies that have been in place. First, it should be noted that hardship distributions can only be taken for the following reasons (which together constitute the “safe harbor definition” for hardship distributions):

  • Medical expenses of the employee, as well as his or her spouse, dependents or primary beneficiary
  • Costs related to the purchase of an employee’s primary residence
  • Tuition and related educational fees and expenses covering the next 12 months of postsecondary education for the employee, as well as his or her spouse, dependents or primary beneficiary
  • Payments necessary to prevent eviction from, or foreclosure on, the employee’s primary residence
  • Burial and/or funeral expenses for the employee, as well as his or her spouse, children, dependents or primary beneficiary
  • Certain expenses to repair damage to the employee’s primary residence

Plan sponsors, with the assistance of their third-party administrators (TPAs), should always work to obtain documentation from employees supporting their financial need. The Plan sponsor should maintain this documentation on file at all times.

Additionally, the IRS had also imposed the following rules and restrictions on hardship distributions, among others:

  • Hardship distributions cannot exceed the amount necessary to cover the employee’s financial need
  • Before taking out a hardship distribution, the employee must have already taken out all available loans from the plan
  • After taking out a hardship distribution, the employee’s deferrals into the plan must be suspended for six months
  • Hardship distributions can generally only be taken from employee deferrals, employer matching contributions, and employer profit-sharing contributions

With the passing of the Bipartisan Budget Act of 2018, three major changes are in store that will affect the approval and processing of hardship distributions. The changes will allow employees who suffer financial difficulties to more easily obtain assistance from their retirement accounts. The IRS provides 401(k) plans with the option of implementing the changes for plan years beginning in 2019. However, for plan years beginning in 2020 (when the proposed regulations are set to become final), plans will likely be required to do so.

The three major changes are as follows:

  • Employees will no longer be required to take out a loan from their retirement accounts prior to taking out a hardship distribution
  • The six-month suspension of employee deferrals following a hardship distribution will no longer be allowed; however, employees may still elect to opt out of deferrals in accordance with other Plan provisions
  • Amounts previously contributed as qualified non-elective or qualified matching contributions (QNECs/QMACs) may be made available for hardship distributions

When a plan adopts the above changes, the plan sponsor will have to work with its TPA to draft amendments to the Plan Document detailing each of the resulting policy changes. It is imperative that the terms of plan documents, adoption agreements, and summary plan descriptions remain consistent with management’s policies at all times.

Please note that the impending changes only apply to plans that use the safe harbor definition for hardship distributions, as described above. Also, organizations that manage 403(b) arrangements should be aware that they will be subject to most of the changes as well.

The Budget Act includes several other provisions beyond the scope of this article that may have an impact on your retirement plan. If you have any questions or concerns, or if you would like more details regarding the changes to hardship distribution rules, please do not hesitate to contact us.

Charitable Giving Under the New Tax Law

by Michelle Brawner

Do you consistently donate to charities? If so, you should review the different charitable giving options to ensure you maximize your tax deduction.

The Tax Cuts and Jobs Act of 2017 (TCJA) revised the tax code, increasing the standard deduction and eliminating many itemized deductions, but keeping the charitable contribution deduction. This means that many more taxpayers will take the standard deduction. However, there are still a few alternatives, outlined below, to maximize the tax benefit for your charitable donation, even if you do not itemize your deductions.

Donor-Advised Funds

A donor-advised fund (DAF) is an account where taxpayers can pre-fund a number of years of charitable giving. Once the fund has been established, the donor can make contributions to charities out of the fund’s assets at any time. By front-loading several years of charitable donations to a DAF, taxpayers may alternate between itemized deductions and the standard deduction in future years to maximize their tax savings, while maintaining the freedom to make charitable gifts over time. For instance, if a taxpayer who normally has charitable donations of $10,000 per year, donates $30,000 into the DAF in year 1, they would itemize their deductions in year 1 and likely take the standard deduction in years 2 and 3.

Qualified Charitable Distributions

If you have required minimum distributions (RMD) from an IRA, a qualified charitable distribution (QCD) may be a preferred way to reduce your taxable income. The QCD is a direct payment of required minimum distributions from an IRA to a qualified non-profit organization. The QCD will satisfy all or part of your RMD as well as reduce your taxable income. This option is extremely beneficial when your total itemized deductions, including your charitable donations, do not exceed the amount of the standard deduction. The maximum QCD amount is $100,000 and must be directly distributed from your IRA to the non-profit organization.

Reviewing your charitable giving and the related tax benefits is even more important given the new tax law, not only for 2018, but for future years. Snyder Cohn is always available to help explore your options to maximize your tax benefits.

Is It Time To (Re)Examine Your Entity Structure?

By: Cheryl Heusser

It used to be that when tech start-up companies would face the question of entity selection, pass-through entities such as LLC’s made a lot of sense because of high corporate income tax rates and double-taxation of C corporations. Overall tax savings of LLCs could be 10% or more, just for Federal taxes. With the passage of the Tax Cuts and Jobs Act last year and income tax rate reductions in C corporations, some businesses may find that corporations may now provide longer-term tax benefits because of Section 1202 and qualified small business stock (QSBS).

Section 1202 provides guidance on QSBS. If certain criteria are met, gains (up to certain limits) related to the sale of QSBS may be excluded up to 100% from income, either reducing or eliminating double taxation of income, depending on the type of sale.

In order for the stock to qualify as QSBS, certain requirements must be met:

  • The stock must be held inside a C corporation;
  • The corporation must meet the requirements of being an active “qualified trade or business,” as defined within Section 1202;
  • On the date of stock issuance, the corporation must have gross assets of less than $50 million and immediately after the issuance, the corporation’s gross assets must be less than $50 million;
  • The holder of the stock must be the individual or entity of original stock issuance; and
  • The taxpayer must hold the stock for at least five years.

The requirements sound simplistic, but each requirement has its own nuances that must be carefully considered to ensure QSBS compliance.

When doing a side-by-side comparison of the tax effects of choosing a pass-through entity structure versus a corporate structure, the benefits of corporations with 1202 stock make the most sense when:

  • The C corporation will meet the active qualified trade or business requirements;
  • It is clear that the holding period of a majority of the stockholders will be more than five years, making them eligible to exclude gain;
  • A majority of the stockholders’ stock qualifies as QSB stock so they can take advantage of the gain exclusion;
  • There is an expectation of large corporate growth and ultimate sale of stock or assets, causing a large gain that would either lead to an exclusion of some or all of the gain entirely (in the case of a stock sale) or lead to an exclusion of some or all of gain from double taxation (in the case of an asset sale); and
  • At least some of the annual corporate profits are retained and reinvested in company growth so that there is no double taxation during years of operation.

There are always other intangible reasons why business-owners may need to choose one entity structure over another. However, with all other things being equal and with the reduction of corporate income tax rates, C corporations have certainly become a contender.

It may be time to (re)examine the pros and cons of different entity structures based on your current situation. Please contact your Snyder Cohn point of contact to discuss further.

Ask Captain Codehead

Special TCJA Edition

Dear Captain Codehead,

My CPA tells me that using something called the qualified business income deduction, I get to deduct up to 20% of my QBI under the new tax law. I guess that’s pretty good, but I would really like to deduct more than that. What can I do?

Augustus Gloop

Dear Augustus,

We tax practitioners follow a very simple rule in cases like this: WWJD? For readers who aren’t familiar with technical tax jargon, that stands for What Would Julia Do? In some circles, Julia Child is more famous for her cookbooks and television shows, but CPAs consider her the patron saint of income taxation.

Julia would tell you that you need to think of tax law as a recipe and your tax return and refund as the finished dish — a nice boeuf bourgignon, perhaps. So let’s say that your recipe calls for a teaspoon of salt, but you think it tastes better with a teaspoon and a half. WWJD? She’d say go for it: season to taste!

Now technically, Internal Revenue Code §199A says that you get a 20% deduction. But a recipe is more of a good idea than an absolute commandment. If the 20% deduction strikes you as bland, then maybe 30% will be easier for you to swallow. Deduct away! After all, nothing kills a good boeuf bourgignon like under-seasoning.

I usually enjoy my refund with a nice Malbec, but I’ll leave that part up to you. Bon appetit!

Dear Captain Codehead,

I’m following your excellent advice and increasing my QBI deduction percentage. Can I deduct 100% of the income this year?

Violet Beauregarde

Dear Violet,

Absolutely! When you’re audited, of course, the agent will want you to demonstrate that 100% is reasonable. You do that by eating a pound of salt. I recommend Himalayan pink: the crystals are small enough to ingest easily but large enough to release over time, giving you an opportunity to seek medical attention. I’ve often wished my readers good luck in “surviving” an audit. In your case, I mean that literally.

Dear Captain Codehead,

I set up a foreign corporation in a non-extradition country for … very good reasons that I won’t go into here. For years, my little corporation chugged along, but it never paid me any dividends, so I never recognized any income. Then, a year ago, my CPA told me that I was subject to tax on something he called a “965 repatriation.” That was annoying, but at least I only had to pay 8% of the tax last year. This year he’s telling me that I’m going to have to pay tax on all the income my corporation made because I’m guilty. I haven’t even been indicted (yet)! What gives?

Charlie Bucket

Dear Charlie,

It sounds like you may very well be guilty, but that’s not what your accountant actually said. As of 2018, you’re subject to the brand-spanking-new tax on GILTI, or Global Intangible Low-Taxed Income.

For years, taxpayers who had corporations overseas (typically referred to as controlled foreign corporations, or CFCs) only had to pay tax if either a) they got a dividend from the corporation, or b) the corporation had something called Subpart F income. I don’t think I can explain Subpart F income to you without suffering a psychotic break, so I’ll just say that Congress has decided to augment the Subpart F provisions by adding something even more complicated: GILTI!

There are a number of strategies that an individual can use to reduce or defer his GILTI exposure. They include things like having more tangible assets in your CFC and something called a §962 election. In your particular situation, however, I think the best option is an early — and foreign — retirement. Allow me to congratulate you on your choice of country!

Pro tip: make sure you spring for a round-trip fare when you relocate to your new home overseas. Nothing screams guilty/GILTI to the authorities like a one-way ticket.

Dear Captain Codehead,

I hear that CPAs are having a rotten tax season this year because of all the tax law changes and late IRS guidance. Is it true that tax accountants handle the stress by drinking lots of bourbon?

Veruca Salt

Dear Veruca,

I’m afraid your information is out of date. Old school CPAs typically relied on Bourbon to deal with deadline pressure, but it caused far too many tax return errors (and hangovers). No one wants to fall asleep on a pile of 1099s, and the profession is much more health-conscious these days. Red Bull with Vodka is the contemporary CPA’s choice. It’s also true that coping mechanisms vary greatly by region. CPAs in Colorado, for example, hardly feel any stress at all; they do report a very high incidence of the munchies, however.

Happy April Fools’ Day, everyone!

Nonprofit Accounting and Presentation Update: Restrictions and Revenue

by Eric Smith

In this article, we will cover two of the recent accounting standards updates that dramatically change how nonprofits present their financial statements and recognize revenue.

New Nonprofit Financial Statement Presentation Standards

The Financial Accounting Standards Board (FASB) issued Update 2016-14 – Presentation of Financial Statements of Not-For-Profit Entities, which affects nonprofits with fiscal years beginning after December 2017. We are currently assisting many of our nonprofit clients in understanding the changes that are occurring, which include the following:

  • Classification of Net Assets – You can bid farewell to temporarily and permanently restricted net assets. Going forward, there will only be net assets with and without donor restrictions. However, the disclosure of net assets with restrictions will need to be expanded upon in the footnotes to cover the type of restrictions that are in place.
  • Liquidity Disclosures – Nonprofits will need to disclose in the footnotes what liquid resources are available to meet cash needs for general expenditures within one year of the date of the Statement of Financial Position.
  • Statement of Functional Expenses – This statement will now need to be included as either a basic financial statement or disclosed in the footnotes. Previously, this was optional unless the organization was a voluntary health and welfare organization. There will also need to be a footnote which includes the methodology for how the expenses were allocated.
  • Other minor changes affect the presentation of investments and the statement of cash flows.

Revenue Recognition Standards

Along with the new financial statement standards, the change in revenue recognition standards will also have a significant impact on nonprofit organizations. Both recently issued Update 2014-09 – Revenue from Contracts with Customers, as well as Update 2018-08 – Clarifying the Scope of Accounting Guidance for Contributions Received and Contributions Made, could spark numerous changes. Each take effect for years beginning after December 2018, but 2018 financial information may need to be adjusted to match the 2019 changes if an organization wants comparative statements for their 2019 audited financial statements.

The driving factor of these changes is an attempt to standardize how revenue is recognized across all industries. In order to clarify the changes, there now is a five-step approach to identifying the existence of contracts and the performance obligations within them:

    1. Identify the contract
    2. Identify what the performance obligations are in the contract
    3. Determine the transaction price
    4. Allocate the transaction price to the specific performance obligations
    5. Recognize revenue when or as the entity satisfies a performance obligation

Further information can be found in this AICPA article.

These new standards do not affect the revenue recognition for unrestricted donations received from individuals. However, the following types of arrangements may need to be revisited:

  • Fees for service arrangements – if a nonprofit is providing services, the revenue should not be recognized until the performance obligations have been met. Contracts with substantial upfront payments, as well as multiple deliverables or performance obligations, may need to be revisited for a change in how or when revenue is being recorded.
  • Grants – confusion has existed over whether or not grants, especially federal awards, should be considered a contribution or an exchange transaction (contract for services). The new guidance attempts to clarify that issue by giving additional guidance into what differentiates reciprocal (exchange) and nonreciprocal (contribution) transactions. If the nonprofit organization receives a grant that requires them to follow specific criteria in conducting a study with the grantor retaining the rights to the study, this would typically be a reciprocal (exchange) transaction. If the rights to the study were retained by the nonprofit organization and the only requirement was to send quarterly financial reports to the grantor, this would be considered a nonreciprocal (contribution) transactions.
  • Delving further into government grants – even if a grant should be considered a nonreciprocal contribution, there may still be conditions in place that would prevent the entire amount of the award from being recorded as a contribution at the start of the grant. These examples include a barrier that must be overcome, a right of return of assets, or a right of release of the grantor from its obligation to transfer assets. In those cases, revenue would be recognized as it was earned, much like the treatment for exchange transactions.

Even though an organization’s calendar year-end audit may not start until later this year, it’s important to address these issues now so that all parties are on the same page. If you have any questions, please feel free to contact us.

Snyder Cohn is proud to announce that Keith Jennings, CPA, became a Principal at the Firm!

Keith has been a valued member of the Snyder Cohn family since he joined the firm in 2003. His extensive experience includes financial statement and tax return preparation, as well as consulting and planning services for entrepreneurial small businesses and not for profit organizations. Keith has provided services to both local and national charitable, religious, voluntary health and welfare organizations as well as numerous trade associations and social welfare organizations.

Keith graduated from Bucknell University with a Bachelor of Science degree in Accounting. He is a Leadership Montgomery – Emerging Leaders graduate and was a board member and treasurer of SEEC for over seven years. Currently, Keith is a board member of Hearts & Homes for Youth.

Qualified Opportunity Zone Funds: What you need to know

by Billy Litz

When the Qualified Opportunity Zone Funds (QOZF) were created by the Tax Cuts and Jobs Act (TCJA) in December 2017, there wasn’t a lot of clarity, but there certainly was a lot of excitement. The idea behind this program was to tap into the trillions of dollars of unrealized capital gains from various investments by incentivizing taxpayers to develop certain areas throughout the United States. Recently, the IRS released proposed regulations that offered advisors and investors more clarity, and thus more interest, in this tax incentive program. Here is what you need to know:

What are the tax incentives you mention?

Well, for taxpayers with capital gains you will be able to defer the tax liability on the capital gain until 2026 (or sooner if you sell your ownership in the fund before then) by investing in a QOZF. The gain deferred is equal to the investment in the QOZF. There are also benefits for maintaining your ownership for certain milestones. If an investor holds the QOZF investment for at least 5 years, then the basis in that investment is increased by 10% of the amount of the gain originally deferred. If the investment is held for at least 7 years, there is an additional 5% increase in basis for a total of 15%.

In addition to the reduction of the taxable gain, there is an added incentive for investors who hold their investments for more than 10 years. If the investment is held for more than 10 years, the taxpayer’s basis of the investment can be stepped up to the fair market value on the date of disposal. This would make the appreciation on the investment over the 10+ year period tax free. We don’t get to use those words often, so I will repeat that. Tax free!

You should note that in order to qualify for the 7 year milestone, which comes with the full 15% basis increase, you will need to make your investment in a QOZF by December 31, 2019.

That sounds great, but what is an Opportunity Zone Fund?

QOZFs can be setup as either a corporation or partnership and will be required to hold at least 90% of their assets in Qualified Opportunity Zone Property (QOZP). QOZP can be broken down into 3 parts: Partnership interest, Stock or Business property. For purposes of this article, I will focus on business property, specifically real estate.

To qualify as QOZP, the real estate property must be located within an opportunity zone (OZ) (a map of the zones can be found here). Also, the original use of the property must start with the QOZF or the QOZF must substantially improve the property. For real estate, this means that if you are purchasing land and building within the OZ this would not qualify as the original use of the property and the QOZF would be required to substantially improve the property. Substantial improvement was an issue that advisors and investors were looking for clarification from the IRS on, thankfully the proposed regulations addressed this issue and confirmed that only the building would need to be substantially improved in order to be QOZP. Substantial improvement is defined as an improvement made within 30 months of the purchase with a cost greater than or equal to the purchase price. This is best illustrated by an example:

A QOZF purchases land and building within an opportunity zone for $1 million. The portion of the purchase price related to the land was $400,000 and the portion related to the building was $600,000. The QOZF would need to make at least $600,000 of improvements within 30 months for the property to be considered QOZP.

Depending on how you would like to structure the deal, the real property located within an opportunity zone could be held within an LLC and the QOZF could purchase the LLC interest instead of directly holding the real estate.

Now that I know what an Opportunity Zone Fund is, how can I invest in one?

Step one is you need to have a transaction that creates a capital gain. Capital gains come in many forms and from many sources. Luckily, there is a lot of flexibility in how you can make an investment into a QOZF, including at both the entity and individual investor level. The proposed regulations provide that a pass-through entity may elect to defer a gain by making an investment in a QOZF, and the deferred gain would not be included in the distributive share of the owner. If any capital gain is included in the distributive share of an owner, then the owner can make their own election to defer the gain.

In order to qualify for the tax deferral, the investment in a QOZF must occur within 180 days from the date the taxpayer is required to recognize the gain. For individuals and partnerships/corporations, that would mean the date of the transaction. In the case that a capital gain is included in the distributive share of an owner of a pass-through entity (via a K-1), the owner has the option for their 180 day window to begin on the date of the sale that created the gain or on the last date of the tax year for the pass-through entity. This will open up the opportunity (pun intended) for a pass-through entity investor with a capital gain from a sale in early 2018 (ie: 180 days has passed already) to make an investment in a QOZF in order to defer their gain.

Going forward, in an effort to make their opportunity zones more attractive than others, states and local jurisdictions may offer up additional incentives. Governor Hogan has already announced that Maryland plans on spending $56 million on various incentives for zones within Maryland.

With the clarity provided by the proposed regulations, more Opportunity Zone deals are going to start to appear. Please be sure to discuss any investments you are considering with your tax advisor. While the tax incentives can be very beneficial, you need to make sure that all of the requirements are met…and there are many. If you have any questions, feel free to reach out to your team at Snyder Cohn.