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.

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.

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!

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.

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.

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.

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.

Senney Wins U.S. Tax Court Case

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I recently won a U.S. Tax Court case.  The facts in the case are not that unusual and the issues raised by the IRS in this case could likely be raised with respect to most sole shareholder-owned or closely-held "S" corporations.

In my recent case, the taxpayer operated his business as an "S" corporation.  Like a lot of taxpayers, the client took advances from the "S" corporation during the year.  At the end of the year, the client characterized these advances as either W-2 compensation, "S" corporation distributions or loans.   For 3 years in a row, 2006 to 2008, it made more sense for tax purposes to characterize the advances as loans.  In total, the "S" corporation loaned the shareholder about $400,000.

In the following year, the client and his business had some rough financial times and so the client declared personal bankruptcy.  In the bankruptcy, the amounts loaned to the client by  the "S" corporation were discharged, and the "S" corporation took a bad debt deduction.

On audit, the IRS disallowed the "S" corporation's bad debt deduction and assessed the client personally for taxes, penalty and interest in 2009 based on $400,000 of unreported income.  The IRS raised several arguments to justify their assessment of tax in 2009 including: (1) under IRC 108, cancellation of debt in bankruptcy creates income in 2009; (2) under IRC 1368, distributions in excess of basis are taxable as capital gains in 2009; and (3) under IRC 481, the IRS action to treat the advances as taxable distributions in 2009 amounts to a change in accounting method.

All of these arguments were raised by the IRS attorney in the Tax Court case.  The IRS attorney eventually recognized that cancellation of debt does not create income under IRC 108  if the debtor is insolvent.  The IRS attorney also eventually realized that IRC 1368 cannot not apply to the client in 2009 because the distributions were made to the client in 2006-2008.  Finally, the IRS attorney eventually agreed that changing the characterization of the advances from a loan to a distribution is not a change in accounting method.

The IRS attorney finally agreed with me that if the advances were taxable at all, they were taxable as distributions when paid to the client in 2006-2008.   The IRS attorney then closed the case because it was brought only with respect to year 2009.

The IRS attorney cautioned me that the IRS may try to assess tax in years 2006-2008 under the theory that there has been a substantial understatement of income.  Under the tax law, the normal statute of limitations is 3 years and years 2006-2008 are closed.  Hoever, the normal 3 year statute is extended to 6 years if the reported gross income has been understated by more than 25%.  There was no question that the amount in question was more than 25% of the gross reported income.  However, the IRS failed to realize that the amount in question was reported.  It simply was not reported as gross income on the client's tax return.

The amount in question was reported on the "S" corporation information return as a "loan to shareholder."  The case law is clear that such reporting gives the IRS the notice it needs to do further inquiry.  I forwarded this case law to the IRS attorney with the request it be forwarded to the IRS appeals agents.  Accordingly, I do not suspect the client will face assessments for 2006-2008.

If you have been assessed federal or state income taxes and need help with your appeal to the IRS or U.S. Tax Court, please give me a call or email at 937-223-1130 or Jsenney@pselaw.com.


AND ONE MORE THING.  I was listening to WYSO on the way into work this morning.  I heard a news report regarding proper preparation and cooking of chicken.  The story started with a tape of Julia Childs telling her audience that it was very important to thoroughly wash raw chicken in cold water before cooking.  Apparently Julia Childs was wrong.  The USDA has been trying to tell people for years that washing chicken is the wrong thing to do.  The point of washing chicken is to eliminate the salmonella and other germs that are on the chicken skin.  But washing raw chicken splashes the salmonella around in your sink, on your counter and any where else the water gets to.  It is much safer to cook the chicken to at least 165 degrees internal temperature and let the heat kill the salmonella and other germs.  Just thought you might be interested.  You can contact me at 937-223-1130 or Jsenney@pselaw.com.

Estate Planning for Married Couples (Same Sex or Not)

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The U.S. Supreme Court issued a decision in United States v. Windsor that radically changed the estate planning landscape for affluent same-sex married couples. The Court’s decision will have a significant effect on many federal laws and regulations affecting estate planning for spouses.

In Windsor, the Court was reviewing the applicability of the estate tax marital deduction to same-sex couples.  Taking advantage of the federal estate tax marital deduction, an individual can transfer property to his or her spouse during life or at death without having to pay any federal estate or gift tax.  Before the Windsor case, same-sex couples did not get this benefit because the federal Defense of Marriage Act (DOMA) defined “marriage” as a legal union between one man and one woman, and defined “spouse” as a person of the opposite sex who is a husband or a wife.  Consequently, same-sex married couples were forced to pay federal estate tax on their inheritance if it exceeded the tax-free exclusion amount.

Since, the same-sex couple in Windsor was not considered legally married under DOMA, the estate of the deceased had to pay more than $360,000 in federal estate tax.  The executor of the estate then filed suit in District Court requesting a refund, claiming that the definitions of “marriage” and “spouse,” in DOMA was unconstitutional. The District Court agreed.  So did the Court of Appeals.  And in a 5-4 majority decision, the US Supreme Court affirmed the lower courts’ opinions.  By striking down DOMA’s definition of marriage, the Court’s decision made numerous federal laws and regulations (some good, some bad) applicable to same-sex married couples.

The Federal estate planning benefits now available to same-sex couples include:

Portability.  Portability is the right of a surviving spouse to add the unused estate tax exclusion amount (currently at $5.25 million) of the deceased spouse to his or her own unused exclusion amount.  To take advantage of portability, the executor of the deceased spouse transfers the unused exclusion to the surviving spouse, who can then use it to make lifetime gifts or pass assets at death tax-free.  One requirement of portability is that an estate tax return must be filed when the first spouse dies (even if no tax is owed). If the executor does not timely file the return, the surviving spouse loses the right to portability.

Gift-splitting. Currently, any individual can give up to $14,000 each year to as many different people (without limit) as you like without incurring gift tax. Spouses may make a joint gift and combine the annual gift exclusion and jointly give up to $28,000 each year to as many people as they like tax-free. Any gift that is more (individually or in aggregate with all other gifts to the same person) than the annual exclusion amount counts against the lifetime gift tax exclusion amount.  Once an individual has exceeded the lifetime gift exclusion limit (currently $5.25 million), gift tax can apply.  But couples can also gift-split with their applicable exclusion amount, and together can transfer up to $10.5 million through lifetime gifts before gift tax applies.

Retirement Plans. If an individual has a qualified retirement plan or IRA account, ERISA gives the individual’s spouse the right to be the sole primary beneficiary of the account. In order for the individual to name anyone else as a beneficiary, the individual needs his or her spouse’s written consent.

Rollover Rights. For IRAs and qualified plans, the law gives special privileges to spouses who inherit retirement plan or IRA assets. Unlike other inheritors, who must begin making withdrawals by the end of the year following the account owner’s death, a surviving spouse who inherits an IRA or retirement plan account can roll the assets into his or her own IRA and postpone required minimum distributions until the year after the surviving spouse turns 70½.

If you have any questions about estate planning, retirement plans or how the Court’s decision in Windsor affects you and your spouse, please contact one of our tax or estate planning attorneys at 937-223-1130 or Jsenney@pselaw.com.


AND ONE MORE THING.    In addition to giving same-sex couples some of the advantages of married status, the Windsor Court’s decision makes available to same-sex couples some of the disadvantages that are inherent in married status including: (1) losing the ability to step up basis in property by selling it to the same-sex spouse; (2) being jointly and severally liable on a joint tax return, subject to possible innocent spouse relief; (3) losing the ability to recognize loss on sale of property to a same-sex spouse; and (4) applicability of the constructive ownership rules to stock owned by the same-sex spouse.   If you want help with any income tax issues involving spouse please contact Jeff Senney at 937-223-1130 or Jsenney@pselaw.com.

Are You or Should You Be a Florida Resident?

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Some of my clients who spend a lot of time in Florida have asked about what is required to become a Florida resident for tax purposes.  While there are many relevant factors that determine where someone resides for tax purposes, the most important factor is where you spend most of your time.  Generally, a person is considered as resident of whichever state he or she spends more than half the year.

But many people travel on business and pleasure and may not spend half the year in any one place. In these situations, the state of residency is determined by looking at where you spend the most time and by examining other factors. To support your Florida residency you and your spouse should do the following:

1.  Complete and file a Florida Residency Declaration.

2.  Apply for a Florida driver’s license.

3.  Register to vote in Florida.

4.  Become a member of a church in Florida.

5.  Join the Rotary club, Lions Club, Elks club or similar organization in Florida.

6.  Join a gym or YMCA or golf club in Florida.

7.  Get a library card from the local Florida library.

8.  Get a land line phone for your Florida house.

9.  Get a new cellphone with a Florida area code number.

10.  Register your cars in Florida and get Florida license plates.

11.  Change the billing address on all your credit cards to your Florida address.

12.  Establish personal bank account in Florida.

13.  If you are operating a Florida management company or other business that will provide services to a non-Florida operating company, set up a Florida bank account for the Florida management company.

14.  Set-up a website for the Florida management company and advertise it as providing sales and management consulting services.

15.  Do a Yellow Pages ad for the Florida management company and its business.

16.  Get some Florida management company business cards and stationary printed up.

17.  Develop a relationship with a Florida doctor and dentist.

18.  Use credit cards to pay for everything so you have a record of all the days you are in Florida.

19.  Consider having someone house sit your non-Florida house while you are in Florida (this is actually a good idea just for protection of the property, but it also makes it more credible that the non-Florida house is your vacation house and the Florida house is your principal residence).

20.  Consider putting the non-Florida house in a trust or family LLC to get it out of your name (this would negate the principal residence gain exclusion on sale of this house so need to think about this one).


Give me a call if you are interested in moving to Florida and becoming a Florida resident. We can help you with any questions you may have about the process. Jsenney@pselaw.com or 937-223-1130.


AND ONE MORE THING.  Sharon and I were co-hosts of the House of Bread Gala that was held Saturday August 10th at the Sinclair Ponitz Center. Dinner and drinks were excellent, visiting with old and new friends was great, and helping House of Bread collect over $30,000 was wonderful. Thank you to everyone that attended, donated  a silent auction prize, made a cash contribution or helped out in any other way.  Hope to see you all at next year's Gala.  For more information about the House of Bread, go to their website at  http://houseofbread.org/

Hire Workers Before 2014 to Qualify for WOTC

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 The Work Opportunity Tax Credit (WOTC) allows employers who hire members of certain targeted groups before January 1, 2014 to  get a credit against income tax of 40% of first-year wages up to a maximum amount. The maximum amount of first-year wages  is generally  $6,000 per employee, but the limit is only $3,000 for  qualified summer youth employees and various  amounts for qualified veterans.  The credit percentage is 25% for employees who have completed at least 120 hours, but less than  400 hours of  service for the employer.   Where the employee is a long-term family assistance (LTFA) recipient, the maximum WOTC is $9,000.

The targeted worker groups are: qualified IV-A recipients (qualified recipients of aid to families with dependent children or successor program); qualified veterans; qualified ex-felons; designated community residents;  vocational rehabilitation referrals; qualified summer youth employees; qualified supplemental nutrition assistance program (SNAP) recipients; qualified SSI recipients; and long-term  family assistance recipients, i.e., members of a family that receives or  received assistance under a IV-A program for a minimum period of time.  No WOTC is allowed for employees who are related to the employer or to certain owners of the employer.

The amount of first-year wages taken into account in computing the WOTC for qualified veterans is:

    (a) $6,000 for a veteran who is a member of a family receiving assistance under a food stamp program for at least three months (maximum credit of $2,400);
    (b) $12,000 for a veteran with a service-connected disability (maximum credit of $4,800);
    (c) $24,000 for a veteran with a service-connected disability who has aggregate periods of unemployment of six months or more (maximum credit of $9,600);
    (d) $6,000 for a veteran who has aggregate periods of unemployment which equal or exceed four weeks (maximum credit of $2,400); and
    (e) $14,000 for a veteran who has aggregate periods of unemployment of six months or more(maximum credit of $5,600).

Wages paid (1) for federally funded on-the-job training  and (2) to an individual who performs the same or substantially similar services as those of employees participating  in or affected  by a strike or lockout at the employer's plant don't qualify for the credit.

To be eligible for the WOTC, a new employee must be certified as a member of a targeted group by a State Employment Security Agency (SESA). In general, the employer can either get the certification by the day the prospective employee  begins work  or complete a pre-screening notice (use Form 8850) for the employee by the day he is offered employment, and submit it to the SESA as part of a request for certification within  28 days after the employee begins work.

If you have any questions about the WOTC, please contact one of our tax or business attorneys at 937-223-1130 or Jsenney@pselaw.com.
AND ONE MORE THING.  The work opportunity tax credit (WOTC) is a valuable tax break for businesses that hire workers from certain targeted groups. However, under current law, qualifying employee hires must begin work for the employer before January 1, 2014.  Although the United States Congress may extend the WOTC, it's not a certainty.   So if you are planning to add workers, and you are thinking of hiring WOTC-eligible employees, you should make the hire before January 1, 2014 so you can ensure you get the tax credit.  It makes sense not to wait until the last minute, because the process of getting eligible workers certified can be somewhat involved.  Contact me at 937-223-1130 or Jsenney@pselaw.com if you would like to discuss this further.

Buying or Selling Assets or Stock of a Corporation

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Potential buyers of a corporate business generally want to buy the assets of the corporation and not the stock.  Sellers generally want to sell the stock and not the assets.

When a seller sells stock of a corporation, the seller pays tax at capital gain rates on the gain recognized on the sale of the stock.  On the other hand, if the seller caused his or her corporation to sell its assets, then the corporation generally would have to pay tax at ordinary income tax rates on the depreciation recapture amount and tax at capital gains rates on the balance of the recognized gain.  And this corporate level tax is in addition to any tax the sellers pay upon distribution of the sales proceeds by the corporation to themselves.  So sellers generally prefer doing a stock sale because they pay less tax when the deal is structured as a stock sale.

On the other hand, a buyer wants to do a deal as an asset sale because the buyer avoids becoming liable for seller’s known and unknown liabilities, and because buyer will get an automatic basis step-up in the corporation’s assets.  As a result, the buyer will  get larger depreciation deductions and will pay less tax in the future.  For these reason, buyers generally insist on doing the deal as an asset sale.

Assuming taxes and existing liabilities are not a major concern, there are some situations where both buyer and seller would prefer to do a deal as a stock sale.  Doing a stock sale can eliminate the need to transfer or obtain new licenses, permits and certifications.  Doing a stock sale is somewhat less cumbersome since only title to the stock gets transferred and not all of the individual assets.

When buyer and seller negotiate the structure of the deal as an asset sale or a stock sale, they need to factor in the tax consequences when setting the agreed purchase price.  A higher purchase price will generally be paid by the buyer in an asset sale.  A lower purchase price will generally be paid by a buyer in a stock sale.

 But if a deal must be structured as a stock sale, is it possible for a buyer to do the stock sale and still get the tax effect of doing an asset deal?    It is.    IRC section 338(h)(10) permits a buyer and seller to jointly make an election to treat the stock sale as an asset sale for tax purposes.  If this election is made, only corporate-level gain on the deemed asset sale is recognized.  No shareholder-level gain is recognized on the actual stock sale.  Second, the deemed asset sale is treated as occurring while the target corporation is still a member of the selling group.  As a result, it is often possible for the seller to shelter the gain on the deemed sale of assets with operating losses or other tax benefits within the selling group.  As a result, an IRC section 338(h)(10) election may be agreeable to both parties when negotiating the structure of a deal if the value of the future tax benefits to the buyer (stepped up basis) exceeds the current tax cost to the seller.  To the extent the buyer gains significant basis step-up as a result of the election, buyer might increase the stock purchase price somewhat to account for the increased taxes paid by the seller.

If you have questions about making a 338(h)(10) election, call one of our business and tax attorneys at 937-223-1130 or jsenney@pselaw.com.



AND ONE MORE THING.  Don’t forget that making a 338(h)(10) election for an “S” corporation could cause the built-in-gains tax to apply.  BIG tax applies when an “S” corporation that was formerly a “C” corporation sells appreciated assets at any time during the recognition period.  If you have any questions about BIG tax please call one our tax and business attorneys at 937-223-1130 or Jsenney@pselaw.com.
- See more at: http://www.pselaw.com/2013/08/06/buying-or-selling-assets-or-stock-of-a-corporation/#sthash.4fo4apnf.dpuf

Work Opportunity Tax Credit Extended

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The VOW to Hire Heroes Act of 2011 had previously made changes to the Work Opportunity Tax Credit (WOTC), including adding new categories to the qualified veterans targeted group and expanding the WOTC to make a reduced credit available to tax-exempt organizations hiring qualified veterans. The VOW Act had also extended the WOTC for qualified veterans hired before January 1, 2013.  The American Taxpayer Relief Act of 2012 (ATRA) then extended the Work Opportunity Tax Credit (WOTC) for hiring certain workers including qualified veterans through December 31, 2013.

Pre-screening and Certification Requirements

All employers must obtain certification that an individual is a member of a targeted group, before the employer may claim the WOTC. The process for certifying the veterans for this credit is the same for all employers. To obtain certification, employers must file Form 8850.

Normally, an eligible employer must file Form 8850 with their respective state workforce agency within 28 days after the eligible worker begins work. However, the IRS has provided special transition rules for the recent law changes.

Under the special transition rules, an employer who hires a member of a targeted group, other than a qualified veteran, after December 31, 2011, and on or before March 31, 2013, will be considered to have timely filed Form 8850 if it submits the completed form to the respective state workforce agency by April 29, 2013.  An employer who hires a veteran after December 31, 2012, and on or before March 31, 2013, will be considered to have timely filed Form 8850 if it submits the completed form to the respective state workforce agency by April 29, 2013. The 28-day rule will only be applicable after that date.

Claiming the Credit - Taxable Employers

For taxable employers, the WOTC may be claimed for hiring targeted group members, including qualified veterans, who begin work before January 1, 2014.  After the required certification is secured, taxable employers claim the tax credit as a general business credit against their income tax.

Claiming the Credit - Tax-exempt Employers

Qualified tax-exempt organizations may claim the credit for qualified veterans who begin work on or after November 22, 2011, and before January 1, 2014. Tax-exempt employers may not claim the WOTC for other targeted group members.  After the required certification is secured, tax-exempt employers claim the credit against the employer social security tax by separately filing Form 5884-C.  The Form 5884-C is filed after filing the related employment tax return for the employment tax period for which the credit is claimed. It is recommended that qualified tax-exempt employers not reduce their required deposits in anticipation of any credit as the forms are processed separately.

If you are interested in taking advantage of the WOTC, you should talk to your tax professional.  If you have any questions about how to take advantage of the WOTC as amended by the VOW Act or ATRA, please contact me at 937-223-1130 or Jsenney@pselaw.com.

AND ONE MORE THING.   The mandate for large employers to provide health insurance to their full time employees, or face penalties, has been deferred to 2015.  Employees however are still required to obtain and carrying health insurance, or face penalties, starting in 2014.  The delay in implementing the employer mandate will likely cause more people to enroll in the subsidized insurance exchanges.  Each year, going forward as fewer and fewer employers offer health coverage and/or restructure their work force (part time versus full time workers), more and more individuals will likely move to the exchanges.

Small businesses with fewer than 50 employees are not subject to the mandate.  So some employers are looking at restructuring their work force as a way around the new law.  For this purpose, the law defines full time employees as those that work on average 30 or more hours per week.  To avoid the mandate, some businesses have been hiring fewer full time workers, hiring more part-time workers, and/or cutting employees' hours to less than 30 per week.  If you would like to know more about the employer mandate, contact one of our employment law attorneys at 937-223-1130 or Jsenney@pselaw.com.

Facebook Firings Revisited

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The National Labor Relations Board often takes a pro-labor stance when deciding cases brought before it.  In a number of cases where the Employer terminated an employee for posting disparaging comments about the Employer or the workplace on Facebook or another internet site, the NLRB ordered the Employer to reinstate the employee.  The NLRB found in these cases that the posted messages were protected "concerted activity" and that the employee's termination was an unfair labor practice.  However, in a recent case Tasker Healthcare Group dba Skin-Smart Dermatology, the NLRB Associate Counsel sent an Advice Memorandum to the Regional Director supporting the termination of an employee by a medical practice where the employee had vented about her workplace in a private group message sent via Facebook.

In Tasker, the employee and 9 others participated in a group message in which only invited individuals could participate.  The message initially focused on a planned social event.  But the employee later in the string of messages told the others about an exchange between the employee and her supervisor.  In this string of messages the employee told the others that she had told the supervisor to "back the freak off", that the Employer was "full of sh___", that the employee would not "bite my tongue any longer",  and that the supervisor should "FIRE ME . . . and make my day".   Eventually one of the other individuals posted that the workplace was "annoying as hell" and that "there was always some dumb sh__ going on."

On the next day, one of the individuals who had participated in the message string showed it to the Employer.  The Employer then fired the employee in question.  The Employer told the employee it was obvious from the message string that the employee was not interested in continued employment with the medical practice, and that the Employer was concerned about having the employee work directly with patients given the employee's feelings about the medical practice.

The employee filed a claim against the Employer with the NLRB alleging an unfair labor practice.  The NLRB Regional Director asked for advice from the Associate Counsel. The Associate Counsel acknowledged that the NLRB generally protects individuals who engage in concerted activity.  However, the Associate Counsel found that the employee had only been expressing an individual gripe and had not been engaging in a discussion of shared employment concerns.  The Associate Counsel found further that the employee's Facebook comments were nothing more than personal contempt for the Employer and in no way could be characterized as a discussion of the terms and conditions of group employment.  As a result, the Associate Counsel determined that the employee's termination was not unlawful.

If you have any questions or need assistance in any matter involving employee hiring, discipline or firing, please give one of our employment attorneys a call at 937-223-1130 or Jsenney@pselaw.com.

AND ONE MORE THING.  The EEOC settled its first lawsuit alleging discrimination under the Genetic Information Non-Discrimination Act (GINA).  The lawsuit was brought by the EEOC on behalf of a temporary worker.  When the worker's temporary assignment came to an end, the worker applied for permanent employment.  The employer made the worker an offer and then sent the worker to its contract medical examiner for a pre-employment drug test and physical.  The worker was required to complete a questionaire which inquired about the existence of heart disease, hyper-tension, cancer, diabetes, arthritis and other physical and mental disorders in her family medical history.  Following the employee's examination, the employer rescinded its employment offer.  GINA prohibits employers from discriminating based on genetic information and restricts employers from requesting, requiring or purchasing such information.  In this case, the EEOC determined that the employer violated federal law when it requested the worker's family medical information through a contract medical examiner.  If you have any questions about GINA or other employment law matters, please contact one of our employment attorneys at 937-223-1130 or jsenney@pselaw.com

Taxpayer Guide to Identity Theft

We are migrating this blog to Facebook and our website. Please visit www.facebook.com/senneysays and "Like" our page. ~Or~ Send your email address to: jsenney@pselaw.com to receive the latest blog by email. Identity theft occurs when someone uses your personal information such as your name, Social Security number (SSN) or other identifying information without your permission.  Often an identity thief uses a legitimate taxpayer’s identity to file a fraudulent tax return and claim a refund.  This generally occurs early in the filing season before the legitimate taxpayer has filed his or her return.  As a result, you and the IRS may be unaware that this has happened until you file your return and discover that two returns have been filed using the same SSN. You should be alert to possible identity theft if you receive an IRS notice that states that:   More than one tax return for you was filed,   You have a balance due, refund offset or have had collection actions taken against you for a year you did not file a tax return, or   IRS records indicate you received wages from an employer unknown to you. If you receive a notice from IRS concerning possible identity theft, you should respond immediately.  If you think someone may have used your SSN fraudulently, notify IRS immediately by responding to the name and number printed on the notice.  You will also need to fill out the IRS Identity Theft Affidavit on Form 14039.  If you are a victim of identity theft and have previously been contacted by the IRS, but have not achieved a satisfactory resolution, you should contact the IRS Identity Protection Specialized Unit at 1-800-908-4490.  Even if your tax records have not currently been affected by identity theft, you should contact the IRS Identity Protection Specialized Unit if you think you might be at risk because your purse or wallet was lost or stolen, or you noticed unusual or questionable credit card activity. You can minimize your chances of being a victim of identity theft by doing the following:   Don’t carry your Social Security card or any document(s) with your SSN on it.   Don’t give a business your SSN just because they ask.  Give it only when required.   Protect your financial information.   Check your credit report every 12 months.   Secure personal information in your home.   Protect your personal computers by using firewalls, anti-spam/virus software, update security    patches, and change passwords for Internet accounts.   Don’t give personal information over the phone, through the mail or on the Internet unless you    have initiated the contact or you are sure you know who you are dealing with.

The IRS does not initiate contact with taxpayers by email to request personal or financial information. This includes any type of electronic communication, such as text messages and social media channels.  If you receive a suspicious email, you should report it to the IRS at phishing@irs.gov.  If you receive a suspicious contact by phone, fax or mail, you should call the IRS at 1-800-366-4484.   For more information on identity theft and how to prevent it, click on the following links: IRS.gov/identitytheft and IRS.gov/phishing

If you would like to discuss possible identity theft or how to prevent it, please contact your tax or business attorney at 937-223-1130 or Jsenney@pselaw.com

AND ONE MORE THING.   Identity theft and internet schemes do not only affect tax matters.  Internet crime schemes of all types continue to occur with regularity.  The Federal Trade Commission has issued advice on how to prevent identity theft and internet scams and what to do if it happens.  For more information check out the FTC’s Identity Theft page or use the FTC’s Complaint Assistant Internet Crime Complaint Center.  Please contact us with any questions you may have concerning this at 937-223-1130 or Jsenney@pselaw.com.