A common investment disclaimer reads, “Past performance is not a guarantee of future results.” The same applies to the world of construction. Annual and interim financial statements provide valuable information about a contractor’s past performance and current financial strength, but offer little clarity when it comes to what investors and lenders can expect going forward. That is why so many users of a contractor’s financial statements spend more time analyzing the company’s work-in-progress (WIP) schedule than they do their prior year’s income statement. There is a wealth of information buried in WIP reports that can be as beneficial to the contractor as those looking to invest in or provide financing for a project. This tool has proven itself critical to those who supply credit to a contractor (be it their surety or bank), so why do so many contractors fail to use it to run their businesses?

How WIP Works and What It Means

Under generally accepted accounting principles (U.S. GAAP), except in certain limited cases, contractors must recognize revenue on long-term contracts under the percentage-of-completion method. Under this method, revenue is recognized relative to progress toward completion of a job. For example, if a contractor has incurred 50 percent of their total costs on a project, they are able to recognize an equal percentage of the contract price on that job as revenue, regardless of how much they have billed or collected. The amount billed to date, over or under revenue recognized, is either a contract asset (underbillings) or contract liability (overbillings) and is reflected as such on the company balance sheet.

If a company has a large amount of underbillings, this can be a red flag for sureties and bankers, who may interpret them as potential future losses. It should also be a warning sign for the chief financial officer, controller and project managers before these figures are ever released to outside parties. Are these an indication of poor project management, delays in the billing process, or a need to update projected total costs on a job? Perhaps there are unapproved change orders for which work has begun or there are significant material costs that are not billable until installed. Each job can have its own unique situation that creates an underbilled scenario, so it is important to evaluate each job individually. Management should be prepared to explain underbillings and their cause while also being able to determine the proper response to correct any operational deficiencies that may have contributed to them.

Overbillings are generally viewed more favorably by creditors, as they are a way to have the customer finance the completion of the project. However, there are also some concerns to be aware of when it comes to overbillings. A WIP schedule with a combination of jobs with losses and jobs with large overbillings can indicate trouble ahead. In such a case, the billings from one project are essentially being used to cover the costs of other projects. This will create a squeeze on cash flow as the overbilled projects progress, the overbilling recedes, and cash received from one job is used to finance the completion of another. Think of it as a Ponzi scheme playing out in the financial statements. That is how creditors view it.

Overly Optimistic?

Lenders and surety bonding companies also focus on projected gross profit percentages for individual jobs. Are there any that look out of place given the contractor’s previous performance? Some contractors are eternal optimists and always project a best-case scenario when it comes to performance. If a contractor’s completed job schedule reports average profit margins of 20 percent, the lenders and sureties are certain to take a close look at jobs in progress that are projecting a gross profit of 25 percent or more. Contractors should ask themselves the same question and be able to explain why current jobs will outperform historical margins. Is there something different about this job that lends credence to the elevated gross profit percentage, or should we take a closer look at the cost to complete it? “Profit fade” is a term used to describe when gross profit from a contract is less than previously anticipated. Profit fade resulting from overly optimistic projections at an interim date will erode a creditor’s confidence in a contractor’s ability to estimate their job costs accurately. This in turn will result in reduced credit and lower bonding capacity for a contractor.

Monthly Job Reviews

A WIP schedule that is kept up on a monthly basis can be a great tool for measuring job performance. Of course, like any tool, it is only as good as the information that is put into it. If actual and estimated job costs are not correct, the report will be inaccurate and misleading, and the contractor will look incompetent in front of their surety and banker. Conversely, if monitored closely, warning signs, spotted early on, can help get a job back on track and avoid continued losses. The better a contractor becomes at monitoring their jobs in this fashion, the better they will be at preventing profit fade and demonstrating themselves as a skilled, knowledgeable and financially savvy player in the construction industry. Contact a member of HBK’s Construction Solutions Group for additional resources.

Original article published in The Dirt, Magazine.

Internal Revenue Code section 280E prevents businesses engaged in the trafficking of a Schedule I or II controlled substance* from taking federal income tax deductions for ordinary and necessary business expenses—allowing deductions only for costs of goods sold. However, in certain situations, S corporation shareholders may receive a tax benefit from these otherwise non-deductible expenses due to stock basis ordering rules.

Generally, losses may be deducted by a taxpayer only to the extent of their basis, that is, the amount invested. Basis is adjusted in the following order: (1) income, (2) non-dividend distributions, (3) non-deductible expenses, and (4) losses.

When a shareholder’s loss or deduction items are disallowed due to basis limitations, they are suspended and carried over to the succeeding taxable year. The suspended losses and deductions are treated as incurred in that succeeding year, are added to the shareholder’s loss and deduction items actually incurred during that year. Under Treas. Reg. 1.1367-1(g), however, a shareholder can elect to have basis adjusted in a different order: (1) income, (2) non-dividend distributions, (3) losses, and (4) non-deductible expenses. The effect of the election is that any unused non-deductible expenses are carried forward until they are used to reduce stock or debt basis. Once the election is made, the shareholder must continue to use that ordering rule unless the IRS approves a change back to the standard rule. The election may be made on an original return or an amended return.

Consider the following illustration:

George is the sole shareholder in an S corporation. At the beginning of the year, he has $100,000 in basis. The company has a taxable loss of $250,000 for the year, plus $600,000 of non-deductible expenses.

If the shareholder makes—or has previously established—a 1.1367-1(g) election, they can apply $100,000 of taxable loss to their basis first. The loss will be taken on their individual return and the remainder—$150,000 of losses and $600,000 of non-deductible expenses—carries forward to the next year.

If the shareholder has not made the election, the $100,000 of beginning basis will be reduced by $100,000 of the non-deductible expenses. The entire $250,000 loss is then carried forward to the next year. However, the $500,000 of non-deductible expenses exceeding the basis are not deductible and do not carry forward. By making the election, the shareholder receives a tax benefit even though the expenses are in theory non-deductible.

On the surface, the 1.1367-1(g) election seems like a good idea. It allows the use of a tax-deductible loss now instead of a future year. However, making the election could have negative consequences for S corporation shareholders, as any deductions for non-deductible expenses that aren’t used up due to basis limitations are lost.

These rules affect all S corporation shareholders, but it’s particularly important for cannabis companies because under the limitations of the Controlled Substances Act they tend to have large amounts of non-deductible expenses. Taking advantage of the stock basis ordering rules is an involved process requiring many considerations; it is critical to use a tax preparer familiar with these rules. Making a 1.1367-1(g) election without considering the consequences, or being unaware of the carryover rules and tracking non-deductibles incorrectly, could be extremely costly. Make sure you have a CPA who knows the rules and can apply them to your benefit.

* The Controlled Substances Act (CSA) is the statute establishing federal U.S. drug policy under which the manufacture, importation, possession, use, and distribution of certain substances is regulated. It was passed by the 91st United States Congress as Title II of the Comprehensive Drug Abuse Prevention and Control Act of 1970 and signed into law by President Richard Nixon.[1] The Act also served as the national implementing legislation for the Single Convention on Narcotic Drugs.

The IRS recently released the draft 2019 Form 1065 Schedule K-1. The draft includes significant changes which place new disclosure requirements on partnerships.

According to the IRS release, the changes are intended to “improve the quality of the information reported by partnerships both to the IRS and the partners,” and “aid the IRS is assessing compliance risk” by identifying potential noncompliance. If finalized, these changes will create a significant compliance burden for partnerships.

New Required Reporting

Tax Basis Capital Accounts
Perhaps the most impactful of these changes is the requirement that a partner’s capital account be reported on the tax basis. Historically, the responsibility for keeping track of a partner’s basis has belonged to the individual partners, not the partnership. In prior years, partner capital accounts could be reported using tax, GAAP, Section 704(b), or any other basis. For partnerships reporting capital on something other than tax basis, recreating partner basis schedules may be a time consuming and costly process.

Partner’s Share of Net Unrecognized Section 704(c) Gain or (Loss)
Section 704(c) requires the built-in gain or loss (differences in value and basis) of property contributed to a partnership be tracked and specifically allocated amongst the partners using one of several acceptable methods. Previous rules required the partnership to disclose the amount of gain or loss at the time of contribution, and when pre-contribution gain was recognized. The draft K-1 includes lines for reporting each partner’s beginning and ending share of unrecognized Section 704(c) gain or loss.

Separate Reporting of Guaranteed Payments for Services and Capital
Guaranteed payments to partners will be broken out and reported on two separate lines of the K-1, one for services, and one for capital. A third line is added to the K-1 to report the total guaranteed payments. The new requirement may be linked to the IRS interpretation that guaranteed payments for the use of capital are subject to the new Section 163(j) limitation on the deduction for business interest.

Section 751 Gain (Loss)
Gain on the sale of a partnership interest, which is generally taxed at favorable capital gains rates, is reclassified as ordinary if the partnership owns Section 751 “hot assets.” Under the current rules, partnerships must file Form 8308 to report a sale or exchange of a partnership with Section 751 assets. The draft K-1 includes a requirement to report Section 751 gain or loss on the face of the K-1.

• The K-1 for a partner that is a disregarded entity must identify the name of its beneficial owner
• Whether or not the allocated liabilities amounts include amounts from lower tier partnerships
• A special code for reporting income and deductions associated with Section 743(b) adjustments
• Whether a decrease in a partner’s profit, loss or capital is due to a sale or exchange of the partnership interest
• If the partnership aggregated or grouped activities for at-risk or passive activity purposes

Impact on 2019 and Beyond
Compliance with the numerous changes will require substantial effort from both tax professionals and partnership owners, adding time and complexity to the tax preparation process. HBK suggests taxpayers and their advisors start gathering the needed data now to ensure timely and complete filings for 2019 and beyond. For questions, please contact a member of the HBK Tax Advisory Group at 330-758-8613.

S corporation shareholders can deduct losses only to the extent of their adjusted stock and debt basis in the corporation (see Can You Deduct Your S Corp Losses?, Passive Activity Loss Rule).

A shareholder creates stock basis by contributing capital, and debt basis by lending money to the S corporation, both of which are considered “actual economic outlays” by the shareholder. As described in a recent court case (Meruelo v. Comm., 123 AFTR 2d. 2019), to claim a loss from the activity the shareholder must have been “left poorer in a material sense after the transaction.”

Meruelo
In Meruelo, the S corporation suffered a nearly $27 million loss after banks foreclosed on its condominium complex. The taxpayer claimed he had sufficient basis to claim his $13 million share of the loss. His basis comprised of $5 million of capital contributions and more than $9 million of debt basis for transfers from other businesses in which he was an owner. The IRS ruled, and the Tax and Appellate Courts confirmed, that the taxpayer was entitled to claim a $5 million loss, but denied the deduction for any loss claimed on the debt as it was not directly from the shareholder.

The Problem with Debt Basis
It’s clear that a loan from a shareholder to their S corporation creates debt basis. Debt basis is also established when the shareholder borrows funds that it then loans directly to the S corporation, commonly referred to as a “back-to-back loan.” However, the IRS and courts have consistently ruled that anything outside a direct loan from the shareholder to the S corporation does not create debt basis.

In Meruelo, the taxpayer’s CPA was aware of this rule and drafted a promissory note from the S corporation to the taxpayer for a $10 million unsecured line of credit with a 6 percent interest rate. The CPA also reported the taxpayer’s share of related entity debt as shareholder loans on the S corporation’s tax return. The Court rejected the taxpayer’s argument that the arrangement was in effect a back-to-back loan, because there was no evidence that the funds had been lent to the taxpayer and then back to the S corporation. It explained that a shareholder could create debt basis by borrowing from an affiliated company and then lending the funds to an S corporation. But it also held that taxpayers are bound by the form of the transaction they initially choose; the funds advanced as intercompany loans cannot later be reclassified as shareholder loans to create basis.

What Should Shareholders Do?
The fact pattern in Meruelo is one we often encounter, a taxpayer with ownership in multiple entities using earnings from one or more to fund the losses of another. The case highlights the potential tax pitfalls of using this arrangement without proper planning. Shareholders should avoid using intercompany transfers to fund operations where basis limitations could become an issue. Instead, they should consider taking distributions or loans from their related businesses and either contributing or loaning the funds to the entity in need of cash. Done properly, this will create basis.

For questions on this or related tax matters, please contact Ben DiGirolamo at BDiGirolamo@hbkcpa.com.