Tax and financial advice from the Silicon Valley expert.

Amended 2017 returns required for fiscal year passthrough entities

Since proposed regulations were not issued for owner/beneficiary information relating to the 20% of qualified business income deduction until August 8, 2018 and it wasn’t listed on the 2017 forms, that information was omitted on many passthrough entity income tax returns for fiscal years ending in 2018.  According to proposed regulations issued on August 8, 2018, that information should be included on the 2018 income tax returns for the owner.  (Proposed Regulations Sections 1.199A-1(f)(2) and 1.643(e)-(2)(ii).)  If that information is listed on the owner’s Schedule K-1, it’s presumed to be zero.  (Proposed Regulations Section 1.199A-6(b)(3)(iii).)

New IRS guidance for deferral of income from stock options and RSUs

The IRS has issued guidance for a new election to defer taxable income from exercising or vesting of an employee stock option or vesting of restricted stock units (RSUs).  The election is part of the Tax Cuts and Jobs Act of 2017, enacted December 22, 2017.

The new law for the election is at Internal Revenue Code Section 83(i).  The IRS guidance is Notice 2018-97, issued December 7, 2018.  The Notice is 19 pages long.

Congress was trying to provide some relief to employees who have stock-based compensation when the stock isn’t publicly traded or eligible for redemption.  The stock can’t be sold to get the cash to pay taxes.

Under the new law, the income of a taxpayer from exercising an employee stock option or from the vesting of an RSU who makes the election for qualified stock won’t be taxable until the earliest of:

(1) The first date the stock is transferable, including transferable to the employer;

(2) The date the employee first becomes an excluded employee;

(3) The first date on which any stock of the issuing corporation becomes readily tradable on an established securities market;

(4) The date that is five years after the first date the rights of the employee in such stock are transferable or not subject to a substantial risk of forfeiture, whichever occurs earlier; or

(5) The date on which the employee revokes the election (at such time and in such manner as the Secretary of the Treasury (IRS) provides.)

The requirements to qualify for the election are so onerous that I don’t expect many companies to meet them.  In a calendar year, not less than 80% of all employees who provide services to the corporation in the United States or any possession of the United States must be granted stock options or granted RSUs, with the same rights and privileges to receive qualified stock.  Stock options and RSUs usually are not used in such a nondiscriminatory way.

The notice makes it clear that this test applies each year, and grants of options and RSUs in previous years aren’t counted for the test.  Also, the test applies for all employees of the company during the calendar year, regardless of when hired or terminated.

I’m not going to explain in detail who is an “excluded employee”  It’s basically an individual who already owns at least 1% of the company stock or is a key officer of the corporation.

This is a separate election from a Section 83(b) election to treat nonvested stock received as if it was vested, accelerating income from the exercise of a nonqualified stock option.  If a Section 83(b) election is made relating to the exercise of a nonqualified stock option, the transaction isn’t eligible for a tax deferral election under Section 83(i).

If a Section 83(i) election is made for an incentive stock option or a purchase using an employee stock purchase plan, the benefits of those sections no longer apply and the transaction is treated as the exercise of a nonqualified stock option.

The income amount is based on Internal Revenue Code Section 83(a), which is the excess of the fair market value on the later of the date of exercise or the vesting date.  That date also determines when the Section 83(i) election must be made.  The election must be sent to the IRS address for the taxpayer’s federal income tax return no later than 30 days after the later of the date of exercise or the vesting date.

The IRS did not provide an example of a Section 83(i) election in the Notice.  It just says the election “shall be made in a manner similar to the manner in which an election is made under Section 83(b).”  There are important differences.  If you would like to have an example of the election that I drafted, write to me at mgray@taxtrimmers.com.

Any time a corporation transfers qualified stock to a qualified employee, it is required to notify the employee that the employee may be eligible under Section 83(i) to defer income on the stock.  The notice should be provided at the time an amount attributable to the stock would first be includible in the gross income of the employee, or a reasonable time before.  The notice states:

(1) The amount of income to be reported at the end of the deferral period will be based on the value of the stock at the time the rights of the employee first become transferable or not subject to a risk of forfeiture, even if the value of the stock declines before it becomes taxable;

(2) The income recognized at the end of the deferral period will be subject to federal income tax withholding at the highest federal income tax rate, with no reduction for personal exemption credits or estimated tax deductions;

(3) The responsibilities of the employee with respect to the withholding.

If an employer fails to provide the notice, it will be subject to a $100 penalty, up to a maximum of $50,000 per calendar year.

Although the federal income tax is deferred when the election is made, the amount that would otherwise have been taxable is currently subject to federal employment taxes, like social security, medicare and federal unemployment taxes.  (This could still be a hardship for employees who receive no cash and can’t sell the stock.)

Under authority provided to the IRS in the new tax law, the Section 83(i) election by the taxpayer must include an agreement that the deferral stock will be held in an escrow arrangement.  When the income relating to the stock becomes taxable, the corporation may remove shares equal in value to the required income tax withholding.  The shares may be removed up to March 31 of the year following the year the income is taxable.  The remaining shares can then be released to the employee.  The employee can alternatively pay the tax with cash, in which case all of the shares would be released to the employee.

A corporation can preclude its employees from making a Section 83(i) election by declining to establish an escrow arrangement to hold their shares until the federal income tax is paid.

If a corporation intends that employees shouldn’t make Section 83(i) elections for stock received by exercising a stock option or RSU, the terms of the stock option or RSU may provide that no election under Section 83(i) will be available with respect to stock received under the option or RSU.

This new election is a baby step.  I hope Congress provides more helpful relief to employees who receive stock options and RSUs of stock that isn’t publicly traded with more simplified rules in the future.

 

 

 

 

 

 

Opportunity Zones – A new “secret” tax benefit

Capital gains deferral for up to eight years?  Tax free investment growth?  Sounds too good to be true?

The Tax Cuts and Jobs Act of 2017, enacted on December 22, 2017 and mostly effective for individuals for 2018 through 2026, includes a tax benefit that hasn’t been widely discussed, yet.

The tax benefit is for investing in Opportunity Zones.  The reason it hasn’t been widely discussed is the investment community has been waiting for guidelines on how to implement the rules.  On October 19, 2018, the IRS issued proposed regulations for investing in Opportunity Zones (REG-115420-18.)  The proposed regulations answer many, but not all, of the questions relating to the new rules.

A summary of the tax benefits are as follows:

  1. Effective January 1, 2018 through December 31, 2026, if an individual reinvests short- or long-term capital gains from a transaction with an unrelated party within 180 days in Qualified Opportunity Zone (QOZ) property, the reinvested gain won’t be subject to current taxation, but will be deferred until the earlier of the date the QOZ property is sold or liquidated, or December 31, 2026. When it is taxed on December 31, 2026, the gain will retain its character as short-term or long-term capital gain.
  2. If the investment is held for at least five years, the potential tax on 10% of the reinvested gain will be forgiven by a basis adjustment to the QOZ property.
  3. If the investment is held for at least seven years, the potential tax on 5% of the reinvested gain will be forgiven by a basis adjustment to the QOZ property.
  4. This means that, provided the holding period requirements are met and the property is held through December 31, 2026, 85% of the reinvested gain will be taxable on December 31, 2026.
  5. If the QOZ property is held for at least 10 years and the taxpayer makes an election to do so, any additional gain from the ultimate sale or liquidation of the property will be tax free!

Note that only the gain is reinvested, and not the total proceeds like for a Section 1031 exchange.

The investor should keep a side account of cash or liquid investments to provide for paying the tax on the reinvested gain for 2026.  The source of the cash could be the capital recovery for the sale generating the reinvested gains.

The property will usually be acquired by an individual investing in a qualified opportunity fund, and not by a direct investment in the property.

The fund will be organized as a qualified opportunity zone business, conducting a trade or business within a qualified opportunity zone.  The assets of the fund, on average, must consist of at least 90% qualified opportunity zone property.  The proposed regulations include a safe harbor rule permitting the fund up to 31 months to invest the cash received in qualified property, provided the fund has a written plan for the investment.  A major question that hasn’t been answered is whether a rental real estate activity qualifies as a trade or business.  There is an example of converting a factory building to residential rental property in Revenue Ruling 2018-29 that indicates rental real estate should qualify.  (A real estate based business, such as a hotel, certainly does qualify.)

Qualified opportunity zones are designated by the governor for each state.  For example, the governor of California can designate up to 879 tracts, and a list of them are listed on a California Department of Finance web site.  The zones are economically depressed and primarily commercial.  However, many of them are located close enough to more economically advantaged areas to still offer good potential for economic returns.

Remember California has not conformed to this federal tax law.  The federal deferral and exclusions from taxable income don’t apply to California taxpayers and California source income for nonresidents of California.

There are a few aggressive fund managers who are already offering Qualified Opportunity Funds that invest in real estate, with the representation that they can’t guarantee the tax benefits, because of unanswered questions for the rules.

With the release of the proposed regulations, investors can have more confidence investing in qualified opportunity zone funds, but should still use due diligence and consult with their tax advisors before going ahead.  Investors should also consider how the investment fits in their total investment portfolios.

Equity compensation isn’t subject to Railroad Retirement Tax

The U.S. Supreme Court resolved a conflict of interpretation about whether employee stock options are subject to Railroad Retirement Tax.

The Court ruled that equity compensation isn’t subject to the Railroad Retirement Tax.

The retirement system for the railroad industry was nationalized by the Railroad Retirement Act of 1937.  Railroad employers pay taxes on employee compensation, somewhat like the social security system.

Under the Railroad Retirement Act, the tax applies to “any form of money remuneration.”

The IRS claimed that stock options should be considered to be “money remuneration.”

The Supreme Court said that money is understood to be currency issued by a recognized authority as a medium of exchange.  While stock can be bought or sold for money, it isn’t usually considered to be a medium of exchange.

 

What investments besides securities and bank accounts can you make with a Roth or IRA?

The interview on Financial Insider Weekly for this week is with Bill Neville, Certified IRA Services Professional of The Entrust Group. Our interview subject is "Making alternative investments with your IRA or Roth account."

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Tax and financial advice from the Silicon Valley expert.