Hurricane Tax Relief Update

Date April 7, 2023
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Article Authors

We have previously published articles addressing the current deductibility of casualty losses related to Hurricanes Ian and Nicole, both of which caused significant damage to the State of Florida. These articles can be found here.

While President Biden declared Hurricanes Ian and Nicole federal disasters, thus allowing a deduction for related losses, the tax relief available for personal losses is limited due to the $100 dollar and adjusted gross income limitations that only allow a deduction for losses that exceed $100 and 10 percent of an individual’s adjusted gross income (“AGI”). In the past, Congress has enacted legislation waiving these limitations and imposing a single $500 limitation instead for federally declared disasters.

In order for personal losses related to Hurricanes Ian and Nicole to get this same preferential treatment, Congressman Byron Donalds (R-FL), joined by other representatives, introduced the Hurricane Tax Relief Act (“the Act”), H.R. 1494, on March 9, 2023. Senator Rick Scott (R-FL) introduced the Act to the Senate, bill S.764, on the same date. The Act, if passed, would treat Hurricanes Ian, Nicole, and Fiona as qualified disasters, resulting in a waiver of the $100 and 10 percent AGI limitations, and the implementation of a single $500 limitation for personal casualty losses resulting from these hurricanes. H.R. 1494 has been referred to the Committee on Ways and Means, and S.764 has been referred to the Committee on Finance. A similar though more limited bill, H.R. 1331, was introduced by W. Gregory Steube (R-FL) on March 1, 2023. This bill was also referred to the Committee on Ways and Means.

On April 3, 2023, Congressman Donalds, Senator Scott, and other Florida and Puerto Rico representatives sent a letter to President Joe Biden urging him to support the Act and encourage its passage. The letter can be read here.

We will continue to monitor the progress of the Act and will provide updates as the Act makes its way through the legislative process.

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Are You Ready for the 2023 Filing Season?

Date January 27, 2023
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On January 23, the IRS officially kicked off the 2023 tax filing season, and within days we began fielding inquiries about the information required for filing 2022 returns and the tax law changes that will impact those returns. Following is information in response to some of the common concerns:

Expired Tax Provisions

A number of tax provisions impacting personal returns have expired for the 2022 tax year, including:

  • The 100 percent AGI limitation for qualified charitable contributions no longer applies.
  • There is no longer an above-the-line deduction for qualified charitable contributions.
  • There are no economic stimulus payments (or corresponding credit) for 2022.
  • The Child Tax Credit has reverted back to 2020 levels, with a maximum of $2,000 per child.
  • The Child and Dependent Care Credit returns to a maximum of $2,100 (from $8,000 in 2021).
  • Mortgage insurance premiums are no longer deductible as mortgage interest.

Provisions that may impact your business return include:

  • The Employee Retention Credit period has passed, though retroactive credits may be claimed on amended payroll tax returns.
  • Research and development expenditures can no longer be expensed, and instead must be amortized under IRC § 174.
  • Depreciation, amortization, and depletion do not get added back to the calculation of adjusted taxable income in 2022 for the limit on business interest expense under IRC § 163(j).

Hurricane Casualty Losses

Many people were impacted by Hurricanes Ian and Nicole in 2022. The Federal Emergency Management Agency (FEMA) officially declared the hurricanes disasters, which allows taxpayers to deduct three types of losses related to the hurricanes:

  • Federal casualty loss: personal losses attributable to a federally declared disaster
  • Disaster loss: business or personal losses attributable to a federally declared disaster in an area eligible for assistance pursuant to a presidential declaration; deductible either in the year of the disaster or the preceding year
  • Qualified disaster loss: business or personal losses attributable to disasters as specifically identified in legislation passed by Congress

In general, the amount of loss you can deduct is the lesser of the decrease in fair market value of the property and the adjusted basis in the property immediately before the casualty occurred. That loss is then offset by any insurance or other reimbursements you receive.

Federal casualty losses and disaster losses may only be deducted to the extent they exceed $100 per casualty and 10 percent of the individual’s adjusted gross income (AGI). Qualified disaster losses are not subject to the 10 percent AGI limitation, but can only be deducted if they exceed $500 per casualty. Since Hurricane Ian and Hurricane Nicole do not currently meet the definition of a qualified disaster loss, the $100 and 10 percent AGI limitations apply to those losses sustained in 2022. We await additional guidance, and hopefully Congressional action to expand the deductibility of these losses. (For more information, read our article, “Emergency Declaration Makes Losses From Ian Deductible.”

Foreign Considerations

As the economy becomes more global, more taxpayer investments include foreign activity. Since noncompliance with the foreign reporting requirements may result in significant penalties, you should carefully review your assets and investments for foreign asset activity that could require special reporting. In particular, pay attention to the following:

  • Foreign bank or brokerage accounts may require reporting if the total value exceeds $10,000.
  • Foreign retirement accounts could be treated as foreign trusts requiring additional reporting.
  • Investments in foreign partnerships may result in additional reporting under the passive foreign investment company (PFIC) rules.
  • Investments in foreign corporations may require additional reporting under the Controlled Foreign Corporation (CFC) rules.
  • Beneficiaries of foreign trusts or estates may be subject to additional reporting when distributions are received.
  • Gifts or inheritances received from a foreign individual may be subject to additional reporting if the amount received exceeds a certain threshold.

If you are unsure whether an asset, investment, or item of income might be subject to foreign reporting, we encourage you to reach out to your HBK tax advisor for guidance.

Conclusion

Tax reporting and compliance become more complicated each year. Make sure you gather your tax documents carefully and reach out to your HBK tax advisor with any questions or if you are unsure about how certain items could impact your return.

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Want to be tax-exempt? This is what it takes

Date November 16, 2022
Categories
Article Authors
HBK Nonprofit Solutions

You’ve decided to form a nonprofit. Just like forming a for-profit business, you have a lot of decisions to make upfront, many of which will require outside counsel from an accountant, a consultant, or an attorney. Without experienced counsel, your startup will face difficult challenges and could be doomed to failure.

First Step: Create Your Legal Entity.

For the IRS to recognize a nonprofit’s exemption from taxation, it must be organized as a trust, a corporation, or an association. (An unincorporated association can gain recognition as a tax-exempt organization, but this form of organization is not typically recommended for various reasons). Nonprofit incorporation or formation creates your nonprofit entity in your chosen home state. Your Articles of Incorporation/Formation will be required when applying for exempt status. This is also the first place where you will identify your nonprofit’s purpose.

Write Your Bylaws

Bylaws are legal documents, which means there are legal requirements for what should be included. These requirements vary depending on the state in which your nonprofit operates. To ensure your bylaws are in accordance with state laws, get assistance in drafting or amending your bylaws from a qualified professional experienced in nonprofit matters.

Your bylaws are your organization’s operating manual. Typically, they will include:
  • Size of the board and how it will function
  • Roles and duties of directors and officers
  • Rules and procedures for holding meetings, electing directors, and appointing or removing officers
  • Conflict of interest policies and procedures
  • Other essential corporate governance matters
  • As a governing document, your bylaws need to be included in your exemption application. The IRS looks for two key provisions to be included in either your Incorporation/ Formation Document or your bylaws:

  • A purpose clause: What are you going to do, and who will benefit from what you do? The purpose clause will help the IRS determine your organization’s exact exemption code.
  • A dissolution clause. How will you “go out of business” if the organization is not sustainable?
  • If you anticipate filing for 501c3 status, the IRS has specific requirements that apply to your purpose and dissolution clauses.

    The bylaws may be quite different depending on the organization. Is the goal to gain status as a public charity, a private foundation, or some other type of exempt organization such as a membership organization?

    Even with counsel, it’s still the board’s responsibility to provide input throughout the process and to vote to adopt the final product. Although bylaws are not considered public documents, making them public and easily available increases the organization’s accountability and transparency to donors, beneficiaries, and the general public.

    Develop a Business Plan

    Every nonprofit seeking tax-exempt status must have an Employer Identification Number (EIN), whether or not it has employees. File a Form SS-4 with the IRS to obtain your EIN.

    This is the time for the organization to act like a business and develop its business plan. The business plan should address/include the following:

  • Past, present, and planned activities and programs
  • Any planned compensation of directors, officers, trustees, and certain highly paid employees and contractors (“Close Personnel”)
  • Any planned compensation of Close Personnel from related organizations
  • Existing or planned sales and/or contracts between the organization and any Close Personnel (including any organizations they have certain affiliations with)
  • Discussion of family and business relationships among directors, officers, and trustees
  • Goods, services, and/or funds (grants) to be provided to individuals or organizations
  • Fundraising programs planned
  • Conflict of interest policy or explanation of how the organization manages conflicts of interest
  • Financials (actual and/or projected) for three or four years
  • Besides being a business best practice, gathering much of this information will be necessary if you are required to complete a full Form 1023 or 1024 for exempt status.

    Seek Exempt Status

    Incorporating a nonprofit in the state of formation only establishes it as a legal business entity. Creating a nonprofit corporation does not guarantee the organization will be granted tax-exempt status by the Internal Revenue Service (IRS). You must apply for tax-exempt status with the IRS and be approved. There are currently 40 different types of exempt organizations in the Internal Revenue Code. Only organizations that meet the requirements of Internal Revenue Code Section 501(a) are exempt from federal income taxation. And charitable contributions made to some Section 501(a) organizations by individuals and corporations are deductible under Section 170.

    Other benefits may include access to certain grant monies and income and property tax exemptions.

    Determining the correct exempt status for the organization will depend heavily on who will benefit from the mission or its purpose, whether the assets will be dedicated to the mission, and where funding will come from.

    Public Charities and Private Foundations

    Every exempt charitable organization is classified as either a public charity or a private foundation. Generally, organizations classified as public charities are:

  • Churches, hospitals, qualified medical research organizations affiliated with hospitals, schools, colleges, universities, and other organizations that benefit the general public;
  • Have an active program of fundraising and receive contributions from many sources, including the general public, governmental agencies, corporations, private foundations, and/or other public charities;
  • Receive income from the conduct of activities in furtherance of the organization’s exempt purposes; or
  • Actively function in a supporting capacity to one or more existing public charities.
  • Private foundations usually have a single major source of funding, typically a gift from one family or a corporation, and most have as their primary activity the making of grants to other charitable organizations and individuals rather than the direct operation of charitable programs. Some private foundations, called private operating foundations, do directly operate their own charitable programs.

    Political Organizations

    A political organization subject to Section 527 is a party, committee, association, fund, or other entity (whether or not incorporated) organized and operated primarily for the purpose of directly or indirectly accepting contributions or making expenditures, or both, for an exempt function.

    Other Organizations

    Organizations that meet certain requirements may qualify for exemption under subsections other than 501(c)(3). These include social welfare organizations, civic leagues, social clubs, labor organizations, and business leagues.

    Application for Exemption

    Certain types of organizations are automatically considered exempt without actually filing an application with the IRS, most notably, churches, their integrated auxiliaries, and conventions or associations of churches. Others must file either Form 1023, 1023-EZ, 1024, or 1024-A with the IRS seeking status. All applications are now filed online.

    Organizations seeking status under 501c(3) apply using a 1023 or 1023-EZ form. Others seek status by filing Form 1024 or 1024-A.

    When filing for a 501c3 determination, smaller organizations may file the simpler EZ Form— Streamlined Application, 1023-EZ. These applications are much easier and take less time complete, and the filing fee is smaller. Larger organizations will file full 1023 or 1024 forms and require much of the information in your “business plan.”

    To get the most out of your tax-exempt status, file your Application Form within 27 months of the date you file your nonprofit Articles of Incorporation. If you file within this time period, your nonprofit’s tax exemption when granted takes effect on the date you filed your Articles of Incorporation, and all donations received from the point of incorporation forward will be tax-deductible. If you file later and can’t show “reasonable cause” for your delay, your tax-exempt status will begin as of the date on your IRS Application.

    Once You File

    Once you submit your application, you will receive an acknowledgment notice from the IRS confirming receipt of your application. If the IRS needs more information, an Exempt Organization specialist may request further information and will contact you and/or your power of attorney. If you have counsel or another representative assisting you with your application, contact them immediately regarding the additional information being requested. Do not try to answer their questions without their assistance.

    Once the IRS completes its review of the exempt application, they will send you a determination letter, which will either grant your federal tax exemption or issue a proposed adverse determination, a denial of tax exemption that becomes effective 30 days from the date of issuance. If you receive a proposed denial of tax-exempt status, you have the right to appeal and should seek expert advice immediately. Do not delay; waiting to reply will risk the denial of your exemption.

    The IRS review process typically takes several months or longer. Be prepared to wait. The IRS is currently processing 95,000 applications annually. Applicants can review current wait times by going to the IRS website: https://www.irs.gov/charities-non-profits/charitableorganizations/wheres-my-application-for-tax-exempt-status. You can also contact the IRS by phone at 877-829-5500; by fax at 855-204-6184; or by regular mail at:

    Internal Revenue Service

    EO Determinations; Attn: Manager, EO Correspondence;

    P.O. Box 2508; Room 6-403; Cincinnati, OH 45202.

    Compliance Begins Immediately

    Unless you qualify for an exception from the requirement to file an annual return or notice, your filing obligations begin as soon as you are formed. If you have an annual information return or tax return due while your application is pending, complete the return by checking the “Application Pending” box in the heading Item B, and submit the return as indicated in those instructions. You should also determine when you are required to begin your state’s compliance filings, as each state has its own set of requirements.

    Setting up an exempt organization can be confusing, to say the least. The HBK Nonprofit Solutions team is here to help.

    Read the full Fall issue of Insights, the HBK Nonprofit Solutions quarterly newsletter.

    Speak to one of our professionals about your organizational needs

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    Small Organizations Can Be Eligible for IRS 990-N Returns

    Date September 26, 2022
    Categories
    Article Authors
    Teal Strammer

    While most nonprofits are required to file at least one of two IRS annual information returns, small tax-exempt organizations may fall under an exception and be eligible to file an annual electronic notice Form 990-N, otherwise known as an “e-Postcard.”

    Typically, if your nonprofit has annual gross receipts of $50,000 or less, it will fall under the annual information return exception and be eligible to file Form 990-N. If you choose, you could file the full Form 990 or the Form 990-EZ short form return, but if you are eligible and decide to file the Form 990-N, here are a few things you need to know:

    • As the name suggests, e-Postcard must be filed online; there is no paper form that can be mailed to the IRS when remitting a Form 990-N.
    • Form 990-N can be filed using the IRS filing system located on the IRS Charities and Nonprofits page or can be filed with an approved e-file service provider.
    • You will need assistance from the IRS to set up an account online if you use the IRS filing system.
    • Late Form 990-N submissions can only be submitted using an approved e-file service provider. There is no penalty when filing a late Form 990-N, however, an organization that does not file its 990-N for three consecutive years will have its tax-exempt status automatically revoked.
    • Form 990-N can be filed as soon as the day after your organization’s year-end, but is due by the 15th day of the fifth month following your organization’s year-end. There is no extension allowed when electing to file Form 990-N.

    Gross receipts and filing eligibility

    The IRS defines gross receipts as all amounts received without subtracting costs or expenses. However, a nonprofit can have in excess of $50,000 in gross receipts for a given year but still be eligible to file a Form 990-N if one of the following scenarios exists:

    • The newly formed organization has received or donors have pledged to give $75,000 or less during its first tax year.
    • The organization has been operating less than three years and averaged $60,000 or less in gross receipts during each of its first two tax years.
    • The organization has been operating for at least three years and averaged $50,000 or less in gross receipts for the prior three tax years.

    Signing in to the IRS filing system

    As of August 2022, the sign-in process has changed for accessing the IRS filing system. New users must create an account with ID.me, the new IRS credential service provider. Existing users are able to sign in with their previous IRS login or they can create a new account on the ID.me platform. As an extra layer of security, ID.me requires multifactor authentication in order to access their filing system. The previous filing process is still in place once you have accessed the filing system.

    Organizations will need the following information to complete the Form 990-N:

    1. Name and address of the organization

    2. Employer Identification Number

    3. Name and address of the organization’s principal officer

    4. Website, if applicable

    5. Tax year period

    6. Confirmation that the organization’s gross receipts are normally $50,000 or less

    7. Confirmation if the organization has terminated or is terminating


    Once you have submitted the filing, you will be able to print a confirmation page of your submission and pending status to maintain for your organization’s records. Your submission will update once the filing has been accepted or rejected.

    Please reach out to the Nonprofit Solutions Group for information, or if you would like more information on how HBK can help you comply with your IRS filing requirements.

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    Options to Resolve Past U.S. Offshore Noncompliance

    Date May 6, 2022
    Categories
    Article Authors

    The U.S. has a series of complex tax compliance requirements when it comes to ownership of offshore assets by U.S. citizens and permanent resident aliens. Many people fail to comply because it is complex, costly or simply they are unaware that such requirements exist. If you may fall into this category of U.S. taxpayers, please read on. In this article, we address voluntary disclosure programs that may be available to get you back on the right track.

    Cross-border transactions and offshore investment by U.S persons have always been pressure points for the U.S. government. Despite the various foreign reporting requirements in place, the U.S. continues struggling to enforce compliance. In March of 2009, the IRS announced a special amnesty program to encourage the taxpayers to voluntarily disclose their hidden offshore accounts by September 23, 2009, in exchange for abatement of late filing penalties. Taxpayers who failed to disclose their accounts by the deadline faced harsh civil penalties and possible criminal prosecution if their reportable accounts were discovered. Since 2009, the voluntary disclosure program has evolved into a solid program, and the level of taxpayer awareness has also increased.

    These days, taxpayers have different tax amnesty options available to voluntarily disclose their unreported offshore financial holdings.

    Background

    There are different types of tax systems around the world. Some countries levy tax on a territorial or quasi-territorial basis, while others levy tax on a worldwide basis. The U.S. previously had a worldwide tax system, but the Tax Cuts and Jobs Act of 2017 implemented a mixed tax system whereby U.S. residents are taxed on a worldwide basis and U.S. domestic corporations are taxed on a quasi-territorial basis. U.S. residents include U.S. citizens and green card holders (whether living in the U.S. or abroad), and individuals who spend a significant portion of the year in the U.S. (determined by the substantial presence test, which is outside the scope of this article).

    Taxpayers with ties to foreign countries must contend with a cumbersome set of compliance requirements that are sometimes so complex that professionals struggle to remain current. In our practice, we repeatedly see situations where taxpayers fail to comply regardless of whether they used a tax professional to prepare their U.S. tax filings. The penalties for non-compliance are steep, ranging from $10,000 civil penalties per form per year to criminal prosecution and imprisonment. For example, the penalty for failing to file or incorrectly filing Form 5471, Information Return of a U.S. Person with Respect to Certain Foreign Corporations, is $10,000 per form. Similarly, failure to file Form 5472, Information Return of a 25% Foreign-Owned U.S. Corporation or a Foreign Corporation Engages in a U.S. Trade or Business, may result in a penalty of $25,000.

    Current IRS Voluntary Disclosure Programs

    Taxpayers who are delinquent on their international information returns (whether by failing to file or filing incorrectly) are encouraged to utilize these programs to voluntarily disclose previously unreported or underreported offshore income, assets, investments, and accounts to minimize civil penalties and avoid criminal prosecution. Depending on the circumstances, taxpayers have four programs available:

    1. IRS Criminal Investigation Voluntary Disclosure Program;

    2. Streamlined Filing Compliance Procedures;

    3. Delinquent FBAR Submission Procedures; and

    4. Delinquent International Information Return Submission Procedures.


    In this article, we will cover Streamlined Filing Compliance Procedures.

    Streamlined Filing Compliance Procedures

    The Streamlined Filing Compliance Procedures provide guidelines on how to file the amended or delinquent tax return and terms for resolving tax and penalties obligations. It was first offered on September 1, 2012 but has been expanded and modified since then. Eligibility has been extended to U.S. taxpayers residing in the U.S., the $1,500 tax threshold has been eliminated, and the risk assessment process has been eliminated.

    Most importantly, these procedures are only available to individual taxpayers and estates of individual taxpayers whose failure to comply with U.S. foreign reporting requirements is not willful. Non-willful conduct is conduct that is due to negligence, inadvertence, mistake, or a result of a good faith misunderstanding of the requirements of the law. To take advantage of the procedures, taxpayers must certify that their non-compliance was non-willful.

    This program is not for all taxpayers. In some situations, the taxpayers may be prohibited from using the procedures even if their non-compliance was non-willful. For example, if the IRS has initiated an examination of the tax return for any taxable year, regardless of whether the examination relates to undisclosed foreign financial assets, the taxpayer may not participate in the program. Nonetheless, the streamlined procedures are available to both U.S. individual taxpayers residing outside the United States, “Streamlined Foreign Offshore Procedures”, and U.S. individual taxpayers residing in the United States, “Streamlined Domestic Offshore Procedures”.

    The tax returns submitted under either of these programs will be processed like any other return submitted to the IRS. This means that the receipt of the tax returns is not acknowledged by the IRS, and there is going to be no signing of the closing agreement with the IRS. The returns are not subject to IRS audit automatically but may be selected under the existing audit selection processes applicable to any U.S. tax return. They may also be subject to verification procedures for accuracy and completeness. This means that tax returns submitted under the streamlined procedures may be subject to IRS examination, additional civil penalties, and even criminal liability. Thus, the taxpayers who are concerned that their failure to report income, pay taxes, and submit required information returns was due to willful conduct and who therefore seek assurances that they will not be subject to criminal liability and substantial monetary penalties should consider participating in the Criminal Voluntary Disclosure Practice.

    It is very important to understand that the taxpayers who participate in the streamlined procedures are expected to comply with the U.S. law for all future years and file returns according to regular filing procedures.

    Regardless of your situation, remember that there are options to resolve past non-compliance. Each taxpayer’s situation is unique, so it is very important to evaluate which programs you may qualify for before jumping into any particular program. It is also very important to understand the risks, costs, and penalties associated with each program. If you have any questions about these programs, please contact an HBK tax adviser. We are a full-service accounting firm and have a team of experts who can help.

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    Watch Out for Tax-Related Cyber Attacks as Deadline Approaches

    Article Authors

    Tax Day is nearly upon us. And as April 15 approaches, many of us may be multi-tasking even more than normal as we prepare our final tax forms and file returns. Unfortunately, this creates a unique opportunity for cyber criminals to try to entice electronic preparers and filers to click on links that look like urgent emails pertaining to income taxes … but are really scams and/or attempts at phishing.

    So, be on the lookout for any seemingly urgent emails claiming problems with your tax return, “corrected” tax documents from financial institutions requiring immediate downloads or similar scam email messages.

    To lessen the likelihood of falling victim to cyber crime, keep the following points in mind when scanning your email inbox this tax season:

    • The IRS and other legitimate financial institutions DO NOT send or request important information via email or phone calls.
    • Sending tax or other financial information via regular email is NOT considered secure. NOTE: E-file is not email and is thought to be safer than traditional/postal mail.
    • Safeguard your tax and associated financial information by following guidelines specified by the IRS and your CPA.

    Action Items

    1. Go directly to the website of the sending entity or call an authorized phone number listed for them to verify the institution’s legitimacy rather than clicking on an email link. These are the safest ways confirm a valid tax-related email requests.
    2. Use a secure (encrypted) portal or message system provided by the sending entity.
    3. If you must send sensitive information via email, be sure to encrypt it. You should provide your public encryption key to the recipient in a SEPARATE message.
    4. Limit the amount of sensitive information you share via email or phone.
    5. Destroy (SHRED) excess or outdated copies of your tax information. Contact your CPA before doing so, to ensure that you don’t prematurely dispose of necessary tax forms.

    HBK can assist you with these or cybersecurity topics or questions. Please contact Bill Heaven at 330-758-8613 or WHeaven@hbkcpa.com.

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