Tuesday, September 24, 2013

Notice Deadline Under Healthcare Reform Act Fast Approaching

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Under the Health Care Reform Act, employers are required to provide employees with Notice of Availability of State Insurance Marketplaces on or before October 1, 2013.  This deadline is fast approaching.

Employers are required to notify all employees that: (a) a State Insurance Marketplace exists, (b) the employee may be eligible for premium assistance and a subsidy, and (c) if the employee purchases a policy through the Insurance Marketplace, he or she may lose the employer contribution to any health benefits offered by the employer.

Employers (including those who do not offer health coverage to their employees) must distribute the appropriate notice to all employees (regardless of plan enrollment status or part-time or full-time status).  For all employees who are employed before October 1, 2013, the notice must be provided by October 1, 2013.  For employees hired after September 30, 2013, the notice must be provided at the time of hiring.  However, for 2014, a notice provided within 14 days of an employee's start date will be considered timely.  The Department of Labor (DOL) has indicated that for October-December 2013, new employees should receive the notice as soon as possible but no longer than 14 days after their start date.  A separate notice does not need to be provided to employees' dependents or other individuals who are or may become eligible for coverage under the plan but who are not employees.

The DOL issued two model notices in May 2013 that may be used for current and new employees. One model is for employers who offer employer-provided health insurance coverage to some or all of their employees and the other model is for employers who do not offer employer-provided health insurance coverage.  The model notices must be revised by employers to include identifying and contact information. In addition, employers who offer health insurance coverage must provide information on which employees are offered coverage, eligibility requirements, and a statement as to whether the coverage meets the minimum value standard and whether the cost of the coverage to the employee is intended to be affordable based on the employee's wages.

Most employers will be required to provide the notice because it applies to employers covered by the FLSA. In general, the FLSA applies to employers that have (a) one or more employees who are engaged in commerce and (b) gross annual sales of $500,000 or more. The FLSA is enforced by the Department of Labor (DOL).

If you have a question about whether you need to provide this Notice, or if you need assistance preparing the Notice please contact Matt Stokely or one of our business or employment attorneys at 937-223-1130, Jsenney@pselaw.com or Mstokely@pselaw.com.

AND ONE MORE THING.  In a prior blog we discussed how IRS was treating same-sex couples for federal income tax purposes.  The Department of Labor (DOL)'s Employee Benefits Security Administration (EBSA) has now announced that it is following the IRS’s lead in recognizing “spouses” and “marriages” based on the validity of the marriage in the state of celebration, rather than based on the married couple's state of domicile.  If you have any questions on this please contact me at 937-223-1130 or Jsenney@pselaw.com.

Thursday, September 19, 2013

Year End Tax Planning for Charitable Contributions

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Charitable contributions need to be properly timed to obtain the maximum tax benefits. If you plan to make a charitable contribution in 2013 or 2014, you should consider making the contribution in 2013 if you will be in a higher marginal tax bracket in 2013 than in 2014.  On the other hand, if you expect to be in a higher bracket in 2014, you should consider deferring the contribution until next year.  You should also be aware that the special tax provision for direct contributions out of individual retirement accounts expires at the end of this year.

When making any significant charitable contribution, you should try to contribute appreciated long term capital gain property (property held over 12 months).  That way, your charitable deduction for contributions of real estate or securities is based on the full appreciated value of the property, while you avoid paying any tax on the appreciation in value.  Do note that, for contributions of tangible personal property (such as automobiles), the donation may be limited to your basis in the property unless the donated item is related to the exempt purpose of the charity.  Also note that contributions of appreciated capital gain property generally are subject to the 30% of adjusted gross income annual deduction limit rather than the standard 50% annual deduction limit.

If you plan to use IRA distributions to make charitable contributions, you should be aware that this favorable tax provision is set to expire at the end of this year. Under this provision, taxpayers who are age 70 1/2 or older may take exclude from income up to $100,000 of amounts that would otherwise be taxable IRA distributions. Further, these IRA distributions are not subject to the normal charitable contribution percentage limits.  Unless this special tax provision is extended, this may be your last opportunity to achieve these tax savings.

If you would like to discuss getting the maximum tax benefit from the charitable contributions you intend to make, please call me at 937-223-1130 or Jsenney@pselaw.com.

AND ONE MORE THING.  A friend and client, Rand Oliver, is working on his doctoral dissertation.  The subject matter is "Small Business Succession Planning in Southwest Ohio".  Past research strongly indicate that small business leaders identified succession planning as the most significant organizational leadership challenge they faced.  Randy would like to participate in a research study that assesses the relationship between a business owner and his or her likely successor.  There are 50 questions taking approximately 15 minutes of your time.  You and your likely successor must BOTH fill out the questionnaire.  All information will be kept confidential.  Your results will be part of statistics and you will receive a copy of the finished product to hopefully help you in your future succession planning.  If you are interested, please contact me at 937-223-1130 or Jsenney@pselaw.com.  You can also contact Randy directly at 937-271-7282.

Monday, September 16, 2013

Selling Personal Goodwill - A Strategy that Works for Buyer and Seller

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When structuring the sale of assets of a C corporation, what is a good strategy for the buyer from a tax standpoint is generally bad for the owners of the corporation  and vice versa.  There are some exceptions however.  One strategy that helps the corporation’s owners without hurting the buyer is allocating part of the total purchase price to be paid by buyer to the personal goodwill of the corporation’s owners.   This strategy does not increase the overall purchase price, does not reduce the amount of purchase price allocated to depreciable assets, does not lengthen the depreciation recovery period and does not otherwise eliminate or slow down the buyer’s depreciation cost recovery process.  Yet by allocating part of the total purchase price to be paid by buyer to the personal goodwill of the corporation’s owners, the aggregate tax paid by the corporation and its owners is significantly reduced, and the net proceeds the owners actually receive is significantly increased.

To use this personal goodwill strategy, it is necessary to separate the personal goodwill (reputation, expertise and relationships) of the seller’s owners from the goodwill of the corporation itself.  For example, if the assets of a “C” corporation are being sold for $20 million and the tangible assets are worth $12 million, the remaining $8 million would normally be classified as goodwill. If that goodwill is allocated solely to the intangible assets of the corporation, the goodwill will be taxed at the corporate tax rate (about 34%), and then taxed again (20%) when the proceeds are distributed to the corporation’s owners.  If, on the other hand, part of the goodwill (say $4 million) is attributable to the owners of the corporation, then this $4 million would be paid directly to the owners and would be taxed only once as long-term capital gain (20%).  The federal income tax savings alone in this example would be over $1 million.  As a side benefit, this allocation process would works to keep this $4 million of purchase price out of reach of the corporation’s creditors.  And all this  would occur without penalizing the buyer or affecting the buyer’s tax treatment of the purchased assets.

Determining the existence and amount of goodwill that can be somewhat complicated.  The evidence that personal goodwill of the owners exists can be found in the type of advertising the corporation does to promote its business, why repeat customers come back, where business referrals come from, how corporation profits are allocated among the owners, whether business revenue and income is attributable to one or more producers and whether non-compete agreements are in place with the owners.

If the focus of advertising is on the reputation, experience and skills of the owners, including use of the owners name and pictures (as opposed to use of only the corporation name and logo), personal goodwill exists.  If customers come back time and again and ask to see one or more of the owners personally, personal goodwill exists.  If other business professionals refer work to the corporation based on the reputation, experience and skills of one or more owners then personal goodwill exists.  If revenue and income of the corporation are allocated among the owners based on revenue or income production, personal goodwill exists.  If the corporation’s business is primarily based on the work of one or more owners, and the income stream would be disrupted if one or more of the owners left, personal goodwill exists.   And maybe the most important factor, if the owners have not executed enforceable non-compete agreements, personal goodwill exists.

Allocating part of the purchase price to personal goodwill can save owners of a corporation significant taxes and increase the amount of after tax net proceeds the owners receive.  If we can help you structure a sale of your business, please call one of our tax and business attorneys at 937-223-1130 or Jsenney@pselaw.com.

AND ONE MORE THING.   We are holding a seminar on various legal issues on Wednesday October 16th from 8 am (registration) 8:30 am to 10 am seminar at the   Dayton Country Club. Breakfast will be served.  Issues that will be covered during the seminar include: (1) Current procedures for common Immigration Issues; (2) Asset Protection and Succession Planning; (3) desirable/necessary LLC operating agreement provisions; and Document Retention and Data Preservation requirements.  Space is limited.  Register Now!

Thursday, September 12, 2013

September 15th IRS Effective Date for Same Sex Couples

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Recent IRS announcements describe how the IRS will apply the Supreme Court's decision striking down the Defense of Marriage Act (DOMA).  These announcements contain multiple references to a September 16, 2013 effective date. This effective date creates a September 15 deadline for same-sex couples to make certain tax-saving moves, and also create a “wait-until-after-September-15” situation for certain other possible moves.

Sell before September 16? The IRS contains a large number of provisions which put related parties who engage in certain transactions at a disadvantage when compared to unrelated parties who engage in the same transaction.  Persons who are married to each other are considered related parties.  In other words, being married can be both a blessing and curse.  For example, IRS Section 267 provides that there is no deduction for a loss upon a sale or exchange of property between related parties.  Similarly, IRS Section 1031 takes away like-kind exchange deferral of gain when an exchange is made by related persons and either person disposes of the property within two years.

The IRS also includes provisions that put a person at a tax disadvantage when the taxpayer enters into a transaction involving ownership interests in corporations, LLCs or other entities, where a related party owns an ownership interest in the same or a related entity. For example, IRS section 302 provides that a taxpayer gets sale-or-exchange treatment when he or she redeems stock in a corporation if the redemption is a substantially disproportionate distribution to the taxpayer. The test of substantial disproportionality involves a calculation of the percentage of the corporation's stock that the taxpayer owns, either actually and constructively.  For this purpose, a taxpayer is considered to constructively own stock that is owned by parties to whom he or she is related.

Same-sex married couples who engage in these types of transactions before September 16 can escape those tax disadvantages, because they will not be treated as related parties before such date.  But same-sex married couples who engage in these type of transactions after September 15 will be treated as related parties and will be subject to these disadvantages.   If you or someone you know are about to enter into a transaction with a same-sex spouse, you should consult immediately with a tax advisor to discuss whether entering into the transaction before or after the September 15 effective date is most beneficial.

File Return Before September 16?  The IRC provides both advantages and disadvantages to married couples, as compared to couples who are not considered married for tax purposes. Examples of such disadvantages are:

(1) married couples who file jointly are jointly and severally liable for the tax, penalty and interest due on the joint return.

(2)  Use of excess capital losses to offset ordinary income is limited to $3,000 per return, except the limit is $1,500 for married persons filing separately.  Therefore, two persons who are single can offset a total of $6,000 of ordinary income, while a married couple is limited to $3,000.

(3)  Married couples who file jointly fall into tax brackets with higher tax rates than they would if each person filed as a single.  As a result, the total tax paid by the couple is higher if they file as marred and not as single.

Same-sex married couples who have not yet filed their 2012 or earlier open year tax return(s) should immediately consider whether it is beneficial for each of them to file as single for any one or more of those prior years. If the couple determines that there is a reasonable likelihood that there will be tax savings if they file single, then the couple should file single returns before September 16.  On and after this date, a same-sex married couple will not be able to do so.  A single return should be filed even if it is not entirely complete. The return can be amended later to complete any missing or incomplete items.     These returns can even be amended from single filing status to joint filing status if further analysis shows filing jointly would be advantageous.

“Wait-until-after-Sept.-15” to engage in certain transactions?  The IRS also contains a number of provisions which put related parties who engage in certain transactions at a tax advantage when compared to unrelated parties who engage in the same transaction.  For example, while gifts are generally subject to gift tax (or use up part of the taxpayer's lifetime estate and gift tax exclusion), gifts between married persons are not subject to these rules.   Medical expenses are deductible if the status of a person as taxpayer's spouse exists either when the medical services are rendered or when the expenses are paid.  There is also an unlimited estate tax marital deduction for gifts or transfers at death to a spouse.   So, a same-sex married person who is concerned with gift or estate tax on a transfer should wait until after September 15 to make gifts to his or her spouse or to pay for the spouse's medical expenses.

If you have any questions or comments about how the IRS is going to treat same-sex couples for income or estate tax purposes please call one of our tax or estate planning attorneys at 937-223-1130 or Jsenney@pselaw.com.

AND ONE MORE THING.    We are holding a seminar on various legal issues on Wednesday October 16th from 8 am (registration) 8:30 am to 10 am seminar at the   Dayton Country Club. Breakfast will be served.  Issues that will be covered during the seminar include: (1) Current procedures for common Immigration Issues; (2) Asset Protection and Succession Planning; (3) desirable/necessary LLC operating agreement provisions; and Document Retention and Data Preservation requirements.  Space is limited.

Wednesday, September 4, 2013

Social Media and the Workplace

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Social media use in the workplace offers substantial benefits, but employers also face legal and operational risks.  Employers of every size struggle to establish and enforce social media policies as legal standards, technology, and cultural norms change. Social media outlets including Facebook, Twitter, YouTube, LinkedIn, and various blogs have transformed the means by which employers and their employees communicate with each other, with customers and the public at large.  Employers need to understand the risks and benefits inherent in social media including the risk of hiring, disciplining or firing employees based on social media usage.

Social networking sites have become the modern-day office water cooler. They provide employees with a new way to interact and express opinions about co-workers, managers, work assignments and jobs.  This use of social media has prompted many employers to try to control or limit social media use by employees on and off the job.  Employers have also attempted to reduce and eliminate social media expression by employees that might be harmful to the employer’s image or reputation.

These attempts to control employee use of social media have attracted the attention of the NLRB.  From the NLRB’s perspective, broad social media policies put in place by employers can lead to violation of employee unionization rights.  The NLRB believes that social media policies that prohibit employees from making negative comments about their employer can restrict an employee’s right to discuss labor conditions.  Accordingly, employers need to be careful in drafting social media policies.  While it is appropriate to adopt a social media policy, such a policy cannot be so broad as to take away the employees’ right to work together to improve working conditions.

Last year, the NLRB issued a report that provided some guidance on this issue and cautioned that numerous common provisions in social media policies could violate the National Labor Relations Act (NLRA).

Confidentiality Provisions.  Employers generally assume that it’s acceptable to prohibit employees from disclosing confidential information on social media websites.  Not so according to the NLRB.  When reviewing a retailer’s social media policy, the NLRB found that prohibiting employees from using social media to disclose confidential guest, team member and company information could be a violation of the NLRA.  The NLRB, stated that such a prohibition would reasonably be interpreted as prohibiting employees from discussing and disclosing information regarding their own conditions of employment, as well as the conditions of employment of employees other than themselves.  The NLRB also found that provisions which threatened employees with discharge or criminal prosecution for failing to report unauthorized access to or misuse of confidential information would be a violation of NLRA.

“Be Nice” Requirements.  The NLRB also did not like language in social media policies that recommended employees be nice and adopt a friendly tone when engaging with others online.  The NLRB found that this provision was unlawful for multiple reasons.  The NLRB found that warning employees to avoid topics that might be considered objectionable or inflammatory, and reminding employees to communicate in a  friendly professional tone, created an environment where employees could not engage in online discussions that might become heated or controversial.  The NLRB said that discussions about working conditions or unionism have the potential to become just as heated or controversial as discussions about politics or religion, and without further clarification of what is objectionable or inflammatory, employees could reasonably construe such a rule as prohibiting robust but protected discussions about working conditions or unionism.

Permitted Language.  So, what can a social media policy contain?  An employer may prohibit users from posting anything on the Internet in the name of the employer or in a manner that can reasonably be attributed to the employer without prior written authorization from employer’s designated agent.  It is also permissible to prohibit employees from representing any opinion or statement as the position of the employer or of any individual in their capacity as an employee of the employer.  Employers can also require employees to: be respectful of others, be honest and accurate in any posting, post only appropriate and respectful material, not use social media to retaliate, maintain the confidentiality of employer trade secrets and private or confidential information, refrain from posting internal reports, policies, procedures or other internal business-related confidential communications, require employees to respect financial disclosure laws when online and not create links from their blogs or social networking sites to the employer’s website without identifying themselves as an associate of the employer, express only their personal opinions and never represent themselves as a spokesperson for the employer, and prohibit employees from speaking to the media on the employer’s behalf without contacting the corporate affairs department.

A well-drafted Employee Manual can be a valuable tool for you and your employees.   Your Employee Manual should contain a social media policy.  But you need to be careful you don’t include language in the social media policy that can lead to litigation or cause workplace unrest.  Please call one of our Employment Law attorneys to discuss your social media policy or any aspect of your Employee Manual at 937-223-1130 or Jsenney@pselaw.com.

AND ONE MORE THING.  Matt Stokely recently posted an article on “Bring Your Own Device” to work rules.  In this article Matt discussed how the proliferation of smartphones and tablets provided the potential of increased productivity, responsiveness, and mobility in the workplace, but also raised a host of issues, including security and legal risks such as data loss, data breach, and noncompliance.  Matt pointed out that due to these risks, a proactive BYOD policy is imperative and if done correctly, could effectively increase security and compliance.   Please contact Matt Stokely at 937-223-1130 or Mstokely@pselaw.com to discuss your BYOD policies.

Tuesday, September 3, 2013

Transferring a Liquor Permit Business

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Transferring a liquor permit in Ohio generally takes at least 30-90 days, and can take longer, depending on several factors.  There are some factors that are outside the control of the parties.  But there are some things that the parties and their legal counsel can do to speed up the process.

Under Ohio law a number of events occur when a liquor permit transfer application is filed.  First, the application is entered into the Ohio Division of Liquor Control (ODLC) system. This can take a couple of days.  It is important for your legal counsel to ensure the initial application is properly completed and executed.  A minor error can lead to delays or cause the application to be rejected.

Upon receipt and acceptance of the application, ODLC will send out a number of notices to state and local government agencies to advise them of the pending permit transfer request. The political subdivision where the liquor license will be operated is given 30 days from receipt of the notice to object. Most political subdivisions take most or all of the 30 day period before responding to the notice. The board of elections in the county where the license will be operated is also required to verify the wet/dry status of the proposed transferee’s business location. In addition, ODLC is required to notify any church, school, library, or public park within 500 feet of the proposed liquor permit business location. These entities are also given 30 days to object.  It is important to monitor this notice process and make sure that the notices are sent out timely by the ODLC. The complete notification process is spelled out in Ohio Revised Code Section 4303.26(A).

Under Ohio law, a liquor permit cannot be transferred if there are outstanding taxes owed by the transferor. Upon receipt of the notice that a liquor permit transfer application is being processed, the Ohio Department of Taxation (ODT) will confirm whether all sales and withholding taxes have been paid by the seller. ODT has 20 days to notify the parties of any outstanding tax delinquencies. If there are any outstanding tax obligations and/or unfiled tax returns, the delinquencies must be resolved or the permit cannot be transferred.

The process of transferring an Ohio liquor permit involves a lot of documentation. To complete a liquor permit transfer in Ohio requires the following documentation to be filed with the ODLC: an Officer/Shareholder Disclosure form, a copy of the executed lease or a Summary of Tenancy Rights form, a copy of the purchase agreement or a written Summary of the Transaction, Financial Verification Sheet regarding the funds being used to purchase of the business, Personal History forms and an Ohio Background Check (including fingerprints) for all the owners and officers of the business.  Upon receipt of this documentation, the ODLC will process the documents and notify the parties as to any additional documentation needed.

Once all the objections have been waived or resolved, any delinquent taxes have been paid and all required documentation has been delivered, reviewed and processed, ODLC will do a final  building inspection.

When negotiating the transfer of a liquor permit business, the parties need to consider the length of time it takes in Ohio to transfer the license.  The transfer may be accomplished in as little as 30 days.  But it may take as long as 180 days.  During the period of time after the closing of the purchase transaction, and the date ODLC approves the transfer of the liquor permit (30-180 days), the Buyer can only operate the Seller’s liquor license under a Management Agreement.  Under the terms of the standard Management Agreement, Buyer agrees to operate the business, indemnify Seller for any expenses and liabilities that are incurred after the date of closing, and, in exchange, Buyer gets to keep all the net profits derived from operating the liquor permit business during this period of time.  A copy of the Management Agreement must be provided to the ODLC.

If you want to talk to one of our business attorneys about buying or selling a liquor permit business, please contact us at 937-223-1130 or Jsenney@pselaw.com.

AND ONE MORE THING.   The Economic Development Transfer (TREX) was developed through legislation to try to help those areas of the state that have an over-issuance of permits by permitting liquor licenses to be transferred into such areas from other areas of the state which meet certain criteria. Therefore, if you are unable to obtain a new Liquor Permit through the normal Quota System, or if you are unable to do a regular transfer of ownership and location because there are no openings or the number of applicants on file exceeds the openings available, you may be able to use TREX transfer the ownership and location of a permit from outside your desired area to you, as long as you meet the TREX requirements.  The list of possible permits for sale that the Division of Liquor Control has available is the Division’s safekeeping list that can be found on the ODLC website at https://www.comapps.ohio.gov/liqr/liqr_apps/PermitLookup/PermitHolderSafekeeping.aspx.   If you are interested in learning more about TREX or want assistance with a liquor permit application, please contact one of our business attorneys at 937-223-1130 or Jsenney@pselaw.com.

Thursday, August 29, 2013

Small Business Innovation Research Program

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The Small Business Innovation Research (SBIR) program is a very competitive program sponsored by the Small Business Administration (SBA) to encourage small businesses to explore and profit from their technological potential.   SBIR targets the entrepreneurs because that is where SBA believes most innovation occurs.  However, the costs and risks associated with  serious research and development are often more than many small businesses can bear. By reserving a specific percentage of federal R&D funds for small business, SBIR helps small businesses compete on the same level as larger businesses.  SBIR funds the critical startup and development stages, and encourages commercialization of the technology, products and services developed by the entrepreneur.  Since 1982 when SBIR was enacted as part of the Small Business Innovation Development Act, SBIR has helped thousands of small businesses compete for federal R&D awards.

SBIR Qualifications.  In order to qualify for SBIR, small businesses must meet certain eligibility criteria including:
  • Company must be American-owned and independently operated
  • Company must be operated for-profit
  • A principal researcher must be employed by the Company
  • The Company must have no more than 500 employees
The SBIR Program.   Each year, eleven federal departments and agencies are required by SBIR to reserve a portion of their R&D funds for award to small businesses.  These departments are: Department of Agriculture, Department of Commerce, Department of Defense, Department of Education, Department of Energy, Department of Health and Human Services, Department of Homeland Security, Department of Transportation, Environmental Protection Agency, National Aeronautics and Space Administration and the National Science Foundation.  Each of these departments designate certain R&D topics and accept proposals.

Three Phase Program.  Following submission of proposals, the departments make SBIR awards based on small business qualification, degree of innovation, technical merit, and future market potential. Small businesses that receive awards then begin a three-phase program.  Phase I is the startup phase. Awards of up to $100,000 for approximately 6 months support exploration of the technical merit or feasibility of a proposal.  Phase II awards of up to $750,000, for as many as 2 years.  During this time, the R&D work is performed and the developer evaluates commercial potential.  In Phase III innovation moves from the laboratory into the marketplace.  No SBIR funds are available support Phase III.  Each small business must find funding in the private sector or obtain other non-SBIR funding.

The SBA's Role.  The SBA plays an important role as the coordinating agency for the SBIR program.   The SBA directs the 11 SBIR-funding departments’ implementation of SBIR, reviews their progress, and reports annually to Congress on its operation.  SBA is also the information link to SBIR.  If you would like more information about the SBA or SBIR program, assistance with making an SBIR proposal or obtaining an SBA loan, please contact Jeff Senney, Jon Rosemeyer or one of our other business attorneys at 937-223-1130 or Jsenney@pselaw.com.

AND ONE MORE THING.    The University of Dayton’s 2013-2014 Business Plan competition is offering a record $190,000 in total support to help entrepreneurs develop plans to turn an idea into a successful business.  The Business Plan competition is open to all types of businesses.  The Business Plan competition will hold the first information session on September 6 at 5:30pm in the O’Leary Auditorium Hall in Miriam Hall at UD.  For more information on the competition, visit the competition's website at www.udbpc.com.