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Current Topics Being Discussed:

The following table of contents lists the titles for all of the questions that have been asked below. Selecting the title from this list will take you directly to that question.

California taxation of earnings on out of state section 529 plans

Are earnings from out of state 529 that are used for qualifed educational expenses subject to CA income tax?


sale of business assets 1- how would you prepare a 8594 when the sales price is less than the allocated asset values

Capital gains vs ordinary income

I have a client who unwittingly purchased the stock of an S-corp instead of the land owned by the S-corp. She paid over $600k for the stock purchased from the stockholder...not the S-corp. Therefore, not Sec1244 stock. Is there a way to increase the basis of the land on the S-corp books by the investment in the stock thereby reducing the ordinary income from the S-corp operation of buying and selling real estate?


I recommend liquidating the S corp, assuming there has been no increase in the value of the land, triggering a gain on distribution. Reason: real estate should never be owned inside a corporation. Reason: a distribution to shareholders can trigger a gain equal to the increase in value over the original basis due to appreciation.

Form 1041 Trust

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Sub "S" to Add Shareholder

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Like-Kind Exchange Reporting

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Classification of Income on Sales of Real Property purchased for Rehabilitation and Resale

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Sep simple multiple employers

If an individual is self employed and has a SEP and also is an employee of a company that has a Simple plan, can he make the maximum employee deferals and receive the maximum employer 3% contributions in the simple plan and also take the maximum contribution in the SEP plan?


Auto Leasing

What is the rule on Auto leasing? The Owner is leasing to the company vs. Company leasing from auto dealer. I'm also concerned with the auto insurance implications.


Group Health Insurance

Can an employer require certain employees to pay a greater share of the cost of group health insurance (not a cafeteria plan) without treating the excess amounts to favored employees as employee compensation?

Decedent Estate/QRT 645 Election

When a decedent estate and QRT under a section 645 election are terminating simultaneously is it necessary to assign distributions to a "new" trust as indicated in instructions for form 1041? Note: All assets and income were distributed to the beneficiaries equally. Also is it wrong to change the type of entity from a decedent estate to a complex trust on the 1041 for the same EIN?


Real Estate Sale: Life Tenants

Does anyone know of any reference material on selling real estate that has a life tenant (estate) with other tenants (life tenant is landlord in a two family house, life tenant lives in other apartment)? Life estate not created by trust.

Dennis M. Doyle, CPA

There is a lot of material on selling real estate, including life estates, but it will all be state specific because of local real estate law. To sell the land, the life estate can sell his interest in the real property, but generally no one will purchase a life estate in land. Instead, the life estate and the remainder interest(s) will need to sell the fee simple.

Real Property, Expense

Taxpayer buys real property with intention of instituting a major rehabilation development project. Soft costs are incurred and capitalized in connection with the project. Taxpayer subsequently abandons the major rehab project and intends to upgrade the property in its current form. Can the pre-development soft costs, which were intended solely for the rehab project, be charged directly to expense at the time the project was discontinued?


Taypayer Expenses

Taxpayer does computer printouts for his employer in his home, and takes the printouts to his employer's office once a week. Taxpayer doen't have any expenses for supplies and/or equipment, it is all furnished by his employer. The taxpayer only has auto expenses to deliver his work.The taxpayer receives a W-2 from his employer for his work. The taxpayer never works at his employer's place of business. Can taxpayer take auto expense? Can taxpyer take office in home expense's as a deduction on schedule A?

According to IRS guidelines, the office in home deduction must meet the exclusive and regular use test (is a certain portion of the home used regularly and exclusively for business purposes?). In addition, the home office must be the principal place where business is conducted, which it appears to be in this case. As an employee, the IRS also requires that the taxpayer be working at home as a convenience to the employer in order to take the office in home deduction. Instructions for Form 2106 may be of some help with the commuting mileage expense question. The mileage is deductible if the taxpayer's home is his/her principal place of business under code section 280A(c)(1)(A).
DaveJohnson 08:58, 13 Jul 2005 (CDT)

Interest Income on Installment Sale

Taxpayer has entered into a sale of several assets and will qualify for installment sale reporting. The purchase price will be paid over a 5 year period. Is it allowable to structure the payments so that payments made in the first four years are for principal only and the final payments in th.e fifth year are for interest. Both buyer and seller have agreed that interest is to be paid at the end of the payment period and will, if allowable, report the interest consistently, that is, the buyer will report no interest expense until the fifth year of the payout and the seller will not have to recognize any interest income until the fifth year.


Publication 537, page 9 requires that adequate stated interest is included and that the present value of payments are determined based on the test rate of interest. For unstated interest, if the contract price is less than $3,000 no interest is required.

Insolvency/bankruptcy and partnerships

Bankruptcy/Insolvency questions: I have an LLC that has gone out of business, was insolvent but did not declare bankruptcy. One of the members declared chapter 7 and the other will likely declare chapter 13. I understand the COD (cancellation of debt) income is passed through from the LLC to the members who individually determine whether it has to be reported or whether they qualify for the insolvency/bankruptcy exception. In that case they reduce various tax attributes. My questions are as follows:

1. When testing for insolvency at the individual level do you include the value of future retirement income or IRA or other retirement savings accounts?

2. How is the COD income passed through on the K-1 from the partnership (LLC) return? Which line is it on? How do you avoid a K-1 matching error if you exclude that income from the individual return because of insolvency?

Per the IRS instructions, page 7 (paraphrased): The partnership would issue for 1099-C to each partner for the cancellation of any debts. On page 25…If the partnership receives a 1099-C, report each partner’s share on Form 1065, Schedule K, line 11 and Schedule K-1, box 11, Code E. Regarding the K-1 matching, attaching an explanation to the return may eliminate an IRS notice.

3. The partnership before closing had four kinds of debt as follows: a. Secured – In this case the underlying property was returned to the debtor and I treated the transaction as though the asset were sold in exchange for the balance due on the debt. Is this COD income or proceeds from sale of an asset? Is it subject to exclusion at the shareholder level because of insolvency? b. Unsecured – This was all eliminated with a debit to accounts payable and a credit to COD income. Where does this show on the K-1? c. Loans from members – Are these amounts COD income to the LLC or are they capital contributions by the members when forgiven? d. Guarantees assumed by the shareholder – because of personal guarantees by the shareholder these become their personal debts.

Is this recorded any place on the partnership books? Do the shareholders get basis when assuming these debts? Is this a capital contribution by the members to the LLC or just more COD income at the LLC level?

Bob w

Race Car in Corp.

Do you have any quidelines on how to successfully incorporate a solo shareholders race car in the Corp.

Corp is insurance brokerage firm, high cash flow. Car is raced by Solo shareholder in competition. Car bears advertising for target Corp. and for other third party advertisers. Advertising revenue is received by target Corp. Shareholder solicites business at the race events.

Expenses for race entry fees, transport of vehicles, etc. included in advertising expense.

I understand some problems, but, and looking for anyone who has a success in this area.



Write it off as Promotion Expense. Keep good records. Audits of Corporatons are so rare you should have nothing to worry about. After 3 years you celebrate your "victory". David, CPA July 13, 2005

Principal Residence Use Test


I've owned and lived in my principal residence for 10 years. I want to tear it down and build a new house on the land. I would like to immediately sell the new home.

Would the sale qualify for the exclusion of $250,000 (single)? I assume original costs plus all costs of new home, including demolishing costs, would qualify.

The main question is do I have to live in the new home for 2 more years or does my prior occupancy qualify?

Thank you very much


It does not appear that the sale would qualify for the exclusion. The code section 121 and the publication 523 state that the property being sold must be owned and used as the prinicpal residence for 2 years.

Why would the owner not qualify? It seems to me that this would be the same thing as totally remodeling the residence. Any absence by the owner from the residence while it is being rebuilt would be a "temporary absence". If the owner doesn't qualify for the exclusion then wouldn't you have to allocate the exclusion in situations where an addition was built or maybe a kitchen totally gutted and remodeled and not "used" for the entire two years? AnuenueAnuenue 21:37, 26 Oct 2005 (CDT)

Sole proprietor pay check or owner draw

Can a sole proprietor pay himself as an employee of his company in lieu of taking owner draws as compensation????


As a sole proprietor, you do not pay yourself as an employee. Any money taken out of the company is done as an owners draw.

You can put yourself on payroll if you want but do not have to. David, CPA July 13, 2005

OK. Let's say the sole proprietor just got IRS approval to file his LLC's taxes as a corporation. NOW how should he pay himself? (There are no other employees)
PrudentGary 15:04, 16 Jul 2005 (CDT)

Compensation of S Corporation employees From TaxAlmanac, A Free Online Resource Compensation of S Corporation Employees

The IRS sends this reminder: An S Corporation must pay reasonable compensation (subject to employment taxes) to shareholder-employee(s) in return for the services that the employee provides to the corporation, before a non-wage distributions may be made to that shareholder-employee. This issue has been identified as an area of non-compliance and will receive greater scrutiny in the foreseeable future.

Unlike a partnership, flow-through income from an S corporation is not subject to self-employment tax (Revenue Ruling 59-221, 1959-1C.B. 22). In direct contrast, a partnership’s flow-through ordinary income is generally subject to self-employment tax. On the surface, this appears to be a clear tax advantage of an S corporation vs. a partnership. However, in terms of "shareholder-employees" of an S corporation, the analysis does not end here.

If a shareholder-employee of an S corporation provides services to that S corporation, then reasonable compensation (subject to employment taxes) generally needs to be paid in return before any non-wage distributions may be made to that shareholder-employee. Several court cases support the authority of the IRS to reclassify other forms of payments made to the shareholder-employee as a wage expense. See Joly v Comm. 2000-1 USTC 50315 (6th Cir., 2000). In addition, several court cases have reinforced and clarified the IRS position as to the employee status of S corporation shareholders who perform services for the S corporation. See Veterinary Surgical Consultants, PC v. Commissioner, 117 T.C. 141 (2001) and Joseph M. Grey Public Accountant, P.C. vs. Commissioner, 119 T.C. No. 5, (Sept. 16, 2002).

Provided an S corporation shareholder is an employee and has received an actual distribution, the only remaining area of question is what amount is considered "reasonable" for that particular shareholder-employee. Whether the amount paid for the services provided constitute "reasonable compensation" is based upon all the relevant facts and circumstances

Retrieved from ""

Simple Schedule C Question

An Art Gallery (for profit) gives away wine to shoppers. It is a very material expense for them. Under what account would you classify all the liquor store receipts??


I would call it Promotion and deduct 100% David, CPA July 13, 2005

Would the 274(n) limitation kick in? Jeffkahn 13:47, 23 Aug 2005 (CDT)

Depreciation - Artwork

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Like Kind Exchanges and Escrow

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Land Development Projects

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Schedule D reporting via broker summary

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We always entered the realized gain/loss summary numbers on Sch D & attached the brokerage summaries to the 1040s. When we began 100% efiling we called the IRS e-file desk to ask what we could do since we couldn't attach things anymore. To our surprise they said that the IRS e-file only got pages 1 & 2 of Schedule D; no data from the attachments came thru! We now just type in the long & short term realized gains & losses. We never get CP-2000s as long as the Sch D sales totals equal or exceed the total of the 1099-Bs. Lesson - don't type in short sales as negative sale amounts since that decreases the total sales below what IRS computers are expecting.--Tjemison 16:46, 11 Oct 2005 (CDT)

Loan Fees

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Automobile Expense

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Tax Shelter for Gain on Secondary Home when Profit is Reinvested for Business Purposes

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Why create taxable income for Mom/Dad? These payments can be gifts. Better yet. Have taxpayer pay nursing home fees and deduct parent as a dependent. David, CPA July 13, 2005

Since the home is no longer the Parent's primary residence she cannot deduct the mortgage interest or real estate taxes on Sch A. If she chooses to treat the house as a rental, she needs to depreciate the property in addition to deducting the mortgage interest and property taxes. IRS likely will have a problem with allowing the rental losses year after year as the 'rent' received (the mortgage payment) likely is not as much as the fair market rent would be if rented to an unrelated party. There is also the question of the special treatment given to a relative.

The best treatment likely is for the child to simply pay the mortgage and be done with it. Neither parent nor child can itemize with the interest or RE taxes as the child is not legally reqired to pay either interest or taxes and the parent cannot deduct them as they are not actually making the payments (even as a second residence). Taxladyml 17:52, 27 Jul 2005 (CDT)

Capitalization of Roof Repair

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Selling House

Can the buyer of a house allocate part of the purchase price to personal property thereby reducing his future property taxes and reducing the sellers capital gain. Is there any authority for this?


How the buyer allocates or uses an asset has no relation to the seller's tax treatment. You'll have to check with your state about the personal property aspect of your question. Taxladyml 17:56, 27 Jul 2005 (CDT)

You can allocate the purchase price to the real estate portion and personal property portion as long as you have some economic basis for the allocation. Seller may have a capital gain on the personal property allocation if sold at a gain. David, CPA 20:14, 8 Aug 2005 (CDT)

Sole Proprietor & Check the Box

Can a Sole Proprietor elect to be taxed as a S-Corporation by filing the check the box form?

No. --Gregg Gillaspy, CPA, CFP 22:30, 6 Jul 2005 (CDT)

That is what I thought, but I have a client that was already a part of the prior CPA's client base that was purchased. In reviewing the file of this client prior to preparing his tax return, I notice that the prior CPA filed the check the box form and a 2553. The IRS approved this election and she filed a 1120S for the company and then filed a 1040 for him personally as an emplyee of the company but did not subject his wages to federal or state unemployment.

Would you suggest amending the 2003 return and file the company portion on a schedule C?

Notify the IRS about the incorrect approval?

Well, let's back up a minute...maybe I'm jumping the gun here. If the client is a "single member LLC", which would go on a Schedule C unless it is a Schedule E or F activity, it could have the "appearance of being a sole-proprietor" because it is reported on Schedule C. If it is indeed an LLC then it most definitely can file check the box form and then a 2553. Actually, during 2005 the IRS said you can skip the check the box form and file a 2553 which would accomplish the objective of both forms. I think you need to dig into it a little further.--Gregg Gillaspy, CPA, CFP 22:49, 6 Jul 2005 (CDT)

This client is not an LLC he has not filed any association papers with the state. He is only a sole proprietor. What do you think should be done?

Work on assignment for a company that does not take out taxes.

I am a temporary employee working for a company that does not take taxes out of the pay. The job tasks are very specific so I am not sure if I fit the "Contract Worker" category but know I need to pay taxes. What forms???When???


For more information on contract worker status and federal estimated income tax payments, see IRS Publication 1779, Employee Independent Contractor Brochure (available at, and the following IRS site:,,id=110344,00.html
You can pay Federal taxes with form 1040ES. David, CPA July 13, 2005

You need to find out what form they are going to use at the end of the year to report your wages to you and IRS. If they will be using a W-2 the company will be paying both your half and theirs of Social Security and Medicare (since they are not holding anything out of your pay IRS will give them no choice) but you will be responsible for the Federal withholding - use the 1040ES to submit your federal withholding. On the other hand if they will be using a 1099-MISC to report your pay, they are considering you a independent contractor and they are expecting you to pay all the taxes (again, use 1040ES) by showing the income on Sch C. If you really feel you qualify as an employee (and are willing to risk losing your job) you can fight the 1099-MISC by filing a substitute W-2 (Form 4852) and Form 4137 (Social Security and Medicare Tax on Unreported Tip Income) to pay your half of the Social Security and Medicare Tax plus adding a detailed explaination page to your tax return telling IRS what you've done and your reasons why. IRS will look over the situation and if they agree with you they will go after the employer (thus you may lose your job), however, if they do not agree with you, they will require you pay the remaining half of the Social Security and Medicare taxes and report your income on a Sch C. Taxladyml 18:17, 27 Jul 2005 (CDT)

L.L.C. Dissolved - which form to file

I filed form 1065 for an llc for the year 2001, the llc had two members for the year 2001 -however- for the year 2002,the llc became a one member llc, and eventually dissolved. is filing 1040 sufficient for the remaining member or 1) do i file form 1065 for the llc first which has just one member remaining , and then 2) file 1040 for the said remaining member.

Please help!


File Form 1040 for the sole member, reporting the LLC's income. After losing the second partner, the entity no longer qualified as a partnership under state or federal law, including the federal tax rules for default entity classification. For federal tax purposes, the entity will be treated as a sole proprietorship (disregarded entity). Do not file the Form 1065 for the LLC's tax year during which it only had one member.

Prepayment Penalty deduction or add to the basis of Property?

Thank you.


Mortgage prepayment penalty "If you pay off your home mortgage early, you may have to pay a penalty. You can deduct that penalty as home mortgage interest provided the penalty is not for a specific service performed or cost incurred in connection with your mortgage"(Pub 936)Penalty should be deduct on the year paid. For more information See Pub 17 and 936.

aircraft depreciation/possible recapture

have a client considering purchasing a new $400,000. small plane & leasing it to a flying school for 3-5 yrs, then converting it to personal use. Wants to avoid recaptured depreciation at full rates, just pay tax at capital gain rates upon conversion. Q. 1. Does he have to forget about taking the 30% special depreciation? 2. Can he use MACRS, ie, 44% 1st yr, 22.4% 2nd yr etc, or must he use straight line 20% each yr for 5 yrs? 3. Any other cautions? TAXESETC 13:07, 12 Jul 2005 (CDT)

If he buys the airplane out of state and doesn't pay sales tax on it watch out for your state if it subjects it to a USE TAX. Here in Missouri, the Department of Revenue is starting to retrieve airplane purchase information from the FAA and tracking down people who don't file and pay Use Tax. Happened to one of my clients last year and I told another client earlier this year to expect to be contacted within 3 years with a friendly Notice from the Department of Revenue. --Gregg Gillaspy, CPA, CFP 20:59, 12 Jul 2005 (CDT)

stock wash sales

client has over 20 transactions within the year for the same stock. my question is when does the wash sales actually "close or end" the qty of stock with each purchase varies from 50 to 3000. there are some large losses. do i need to compute deferred losses and revised basis for every trans for the whole year and continue to add to the basis (which will eventually dble in amount)? or at some point does a "batch" clear it self out?



The batch 'clears' itself out when the client waits 32 days to re-purchase the stock which has been creating the wash sales, therefore not creating another wash sale. You are to re-compute the basis for the stock sold each time he sells it at a loss that qualifies as a wash sale. If the client is buying and selling different quantities of the same stock then someone has to keep track of each share of stock's basis in order to do it perfectly correct. I hope you are charging an arm and a leg to do this!! Remember that you have to check the client's January broker's statement to watch for a wash sale that crosses over the year-end. Taxladyml 18:28, 27 Jul 2005 (CDT)

Deducting IDC's for Limited Partner

I have read that you can deduct either 100% or amortizing over 60 months the Intangible Drilling Costs for a Limited Partner but I am unable to find out on what tax form.

Thanks, Aurelia

If the partnership expenses the IDC, the partner can elect to amortize the IDC over 60 months. I believe this is usually done when the taxpayer is in an AMT situations. See Regulation 1.59-1
According to this regulation, for the partner to amortize the IDC over 60 months, an election must be attached to the return with the following information:
1. Taxpayers name, address and EIN number
2. Type and amount of qualified expenditures identified in section 59(e)(2). In this case, this would be IDC and the amount.
3. Amount the taxpayer elects to amortize over 60 months. (The full amount does not have to be amortized)'

That sounds correct for a partner that is a general partner. The operating income would be reported on a schedule E had there been income. Would the schedule E be prepared with the amortization of the IDC on Form 4562 as amortization? If so what section of the code would I report, the on referenced above? The tax program I have doesn't let this item flow through to the appropriate form so I am trying to work around the program.

section 1031

taxpayers grandfather died in 1962, his estate was settled in 1963. Part of his estate was placed in Trust to be distributed to his Grand Children at the death of his last surviving child. Grandfather had 2 children (a) and (b). (a) died in 1983 with 4 children. Child (b) died in 2003 with 1 child. Child (b) was sole trustee during his lifetime and after his death his child and one child of (a) became trustees. The trust, among other assets had a tract of land (90 acres) that was undeveloped. This tract of land was part of the original estate having been purchased by grandfather in 1946. Trustees sold land and distributed proceeds 1/2 to the child of (b) and 1/8 each to the children of (a). Trustees distributed proceeds to each of beneficiaries of the trust and advised them that section 1031 applies and that taxes could be deferred under section 1031.

Question: can trust distribute cash or should it have transferred title to beneficiaries and then sold property in order to comply with section 1031 and can distribution be considered a distribution to beneficiaries under terms of will. Will states that trust is to be distributed to beneficiaries at death of final child. Will also states that trust is responsible for taxes on income generated by trust.

1. IRC Sec 1031 defers gain when property is exchanged for like-kind property. When property is exchanged partially for like-kind property and partially for cash, then part of the gain is deferred and part is recognized.

2. " . . .distribution be considered a distribution to beneficiaries under terms of will" -- as opposed to _______?

3. "Will also states that trust is responsible for taxes on income generated by trust". Absent such a provision, the beneficiaries would be responsible for income distributed to them, and the trust would be responsible for income retained by the trust. In the year of final distribution, the trust would have no income because all of it would have been distributed. Possibly the provision in the Will was intended to spell out the above. Janie 12:04, 22 Aug 2005 (CDT)

Condominium Conversions

Taxpayer, LLC owns a 77 unit apartment complex. LLC is considering converting the rental units to condominums and selling them. How is the gain treated for tax purposes? The holding period before the conversion will be over one year. Long term capital gain or ordinary income?

Thank you. Paul Baltrun

Depends on the numbers.

Taking just one unit.

LLC originally paid $100 for the unit. Assuming Accumulated Dep = $6. Adjusted basis = $94. TP spends $1 to convert to condo. Adjusted Basis = $95. Later sells unit for $110. Depreciation Recap (Ordinary Income Rates) $6. Cap Gain = $9

However, there may be some special rules with respect to rental residential real that I am forgetting. Leatherneck 23:25, 9 Aug 2005 (CDT)

2008 capital gain rate of 0%

I have been reading about the 5% rate for capital gains going to zero in the year of 2008. will that rate also apply to personal home sales?


--Shipkel 12:50, 26 Jul 2005 (CDT)

I am not sure about 0% tax rate for capital gains for 2008, however, under Section 121 Exclusion allows a taxpayer to exclude from income up to 250,000 (500,000 MFJ)on sale of a principal residence under the conditions of ownership and used. To meet this conditions the taxpayer must have owened and used the home as a principal residence for at least two out of five years before the sale (the two years do not have to be consecutive.
For more information see IRS Publications 523,527,530,537 and 544.

Tax and Accountability for Subsidized Cafeteria Plans

How do you apply employee payroll deductions toward pre-tax dining programs. If an employee has weekly or bi-monthly pre-tax dollars withdrawn via payroll tax deductions for dining, is the company required to apply the employees funds toward dining on a daily basis or a period of reasonable time for reimbursement (e.g., monthly or quarter.)

Seeking clarification, documentation, and/or legal cases regarding the subsidization for pretax cafeteria plans. What is the requirement and/or legal precedent?

Requesting conclusive support how this is applied in Fortune 500.

--DAUERMAN 16:06, 26 Jul 2005 (CDT)Elysa

Realizing a Capital Loss

If a client realizes a loss in 2005, must they report that loss on their 2005 return or may they postpone this loss until 2006. The client will not have any gains in 2005 to offset the losses. I have never had anyone ask this before and was caught off guard. Any feedback would be most appreciated. My initial feeling is that they can't postpone reporting the loss.

The transaction must be reported in the year is occurs. You may have a situation in which only $3000 of the loss can be used in 2005 and the rest carried over into 2006. Taxladyml 18:32, 27 Jul 2005 (CDT)

Intangible Drilling Costs for a Limited Partner

Can you deduct the intangible drilling costs paid by partnership if partner is a limited partner and has no passive income?

The intangible drilling costs do not exceed the capital investment. There is actually a loss of capital investment because of the intangible drilling costs and operating expenses.


Holding period for residential rental acquired through inheritance.

I know any property acquired through inheritance automatically qualifies for long term capital gain treatment, but does it also qualify for the lower capital gain rates if the deceased acquired assets more than five years prior to death and/or sale of asset. Any insights would be greatly appreciated.

Nadamoto 20:37, 28 Jul 2005 (CDT)

Yes, it does qualify. The capital gain/loss is calculated by subtracting the fair market value of the property at the date of decedants death (your basis) from the selling price.

The lower rates for 5-year property no longer apply. Property eligible for capital gain treatment (except for unrecaptured sec 1250 gain, collectibles and small business stock) will be taxed at a maximum rate of 5% or 15%, depending upon the taxpayer's bracket. Janie 12:12, 22 Aug 2005 (CDT)

Lease & Option to Purchase Agreement

Taxpayer lived in home for two years then leased it out with a Lease & Option to Purchase Agreement. The agreement states all lease payments will apply to the purchase price if the option is exercised within two years. If it is exercised within the two years it will be treated as a sale of residence and the sale will not be taxable. The question is how are the lease payments handled when received? Are they held and then would not be taxable unless the option is not exercised, or are they treated as rent when received?KathyZ 15:10, 29 Jul 2005 (CDT)


Is there any way to avoid AMT on the excersie of ISO's without waiting a year from the date of excersise to sell the stock?

The alternative minimum tax is triggered on the exercise. If you make a disqualifying disposition, you can avoid the AMT; but if you hold the stock, and don't make a disqualifying disposition, you will owe the AMT. Goose 23:18, 13 November 2005 (CST)

Capital gains rate on property sale (sub-divided land)

My question to anyone out there that knows is what would be the basis and tax rate on the sale of land for someone who purchases a house with 10 arces and the sub-divides the acrage and sells a few lots. Would you use the basis on the total purchase price when you bought the house and land divided by the number of lots or would you use the market value of the lots the day the sub-division was approved? Thank you Pete K

Pete, I think you could come at this from two directions:

Method 1 - Recommended Hopefully when the owner purchased the home there was an appraisal completed. If so then it will break out the values attributable to the home and maybe even the land. If not then hopefully at least the home will have an appraised value separately listed. If home is listed by itself then take the portion of the as shown below.

Example: Price paid for Home and Land = $100. if an appraisal list the home separately great if not one should take an approximated guess at the value of what small acreages were selling for at the time the home was purchased.

But let's assume an appraisal was done and listed the home at $60 allocate some of the land to the land that would stay with the home, maybe one acre (can be more or less) to actual home. If they sold lots around the home then I believe it could be argued that the size of the lots sold are the best estimate of the average lot size in the neighborhood.

So then take the $40 and divide it by the # of acres remaining (not being allocated to the home). This will give you the best estimate of the allocable basis you could get in the absence of other more concrete documentation.

If there were 4, 2 acre lots sold and 2 acres remained as part of the land with the house then you would take the 40/2=10 (which would be the basis per 2 acre lot or $5 per acre.) If you sold the lots for $6 per acre then you have a $1 on each acre sold or an $8 Gain.

Method 2 The FMV of the lots could be used as a reference for allocating basis but only if you had an appraisal of the home to provide a frame of reference. Basis would then be mutilplied by the percentages found. Leatherneck 23:12, 9 Aug 2005 (CDT)

Losses on private annuity.

Close a Small Business

I have had a small consulting business with inventory for the past several years. Since I've been working full-time in another venture, I cannot keep running the biz, so I want to shutter it.

Questions: From an accounting standpoint, what's recommended for the inventory? I don't want to unload it, but rather use it down the road in another start-up. Also, what are some key points to know about closing a small business?

1031 Exchange

Can you maintain the tax savings of a 1031 exchange and incorporate an installment sale of the property or would you loose the tax deferral of the 1031 exchange?

Posted by Msingman

Moved here from 'Ask a Question' page by Tdoyle 20:07, 9 Aug 2005 (CDT)

Depending on the types of property being relinquished, you could possibly break the trasnaction into 2 parts. One part flows through the 6252 and the other through the exchange reporting form 8824??... E.G. 1/3 Interest and 2/3 interest.

I am not even sure this would work (in practice) closings and the like.

The much cleaner way is to:

Example: Relinquished property to sell for $1000. Owner gives Buyer $1000 with a mortgage. Buyer at closing returns the $1000 to the Owner and now Owner has $1000 to purchase replacement property, therein creating an exchange. The buyer pays on the loan just as he would have normally. Difference is no 6252.

All of this assumes a QI was used to facilitate the exchange of property to money then money to property. Leatherneck 22:51, 9 Aug 2005 (CDT)

Amending SC Articles of Incorporation

If a South Carolina LLC changes it's members is it required to file Amended Articles of Incorporation with South Carolina? Sodonnell

Non Businees Bad Debt Loss from Monies stolen by Nigerian Scammers (419 Advance Fee Fraud)

I have a client that is an Attorney in Illinois that was contacted by a so called Attorney in Nigeria. He told me that the Nigerian Attorney showed him proof that he is an attorney and not a scam artist. The Nigerian attorney has a client that wants to come to the United States of America and invest in Real Estate. This person can not use their own monies for certain costs to come to the United States. The Nigerian attorneys client is requesting from my client (Illinois Attorney) payment for Advance Fees, Performance Bonds Etc that will cover the cost to come to the United States. My client advanced a signicant amount of money ($700k) over the past year and half. The only payment he has seen is $500 which represents an overage due to exchange rates. It appears that my client will not fund the Nigerian attorney any more money. My understanding is that once you quit sending money, you are stiffed for the Service with No Effective Recourse. Will my client qualify for a non business Bad Debt? Does he qualify for a Theft Loss (Pub 547) for money taken through fraud? My client realizes that there is no longer any correspondence with Nigeria and that the monies are lost as of 2005. He is the Sole Shareholder of his S Corporation. He lent $98K to the S corporation and 98K was wired to Nigeria. The 602K was personally wired to Nigeria. I am not sure how or if these transactions are treated differently for any possible loss deduction.

Has the theft been reported to any law enforcement agency? If your client takes a $700K thefit loss, the IRS is sure to ask for documentation. He would need to prove not only the amount lost, but also the nature of the loss. Janie 12:26, 22 Aug 2005 (CDT)

1099Misc and W-2 from employer

Employee receives W-2 for wages/salary but gets a 1099Misc for car allowance as non employee compenation(flat rate w/no accountability)-Is 1099 amount reportable as employer reimbursement on 2106 form(to net against expenses incurred) or must Sch C be used for SE tax(which usually creates a net loss)lyn 10:06, 20 Aug 2005 (CDT)lynwal

A schedule C should be prepared and any business mileage that they have can be expensed against this income.

No schedule C should be prepared since this is not a business. Show as other income not subject to SE tax on Other Income line on page one of 1040. Also deduct expenses on schedule 2106.This auto allowance should have been included in W-2. David, CPA

Out of town commute of a contract worker

Background: A contract worker works and lives out of town and comes home on weekends.

Questions: 1. Can he deduct the miles from his drive home on weekends and back to work on Mondays, (about 600 miles reoundtrip)? 2. Are his appartment rent and meals deductible as business expense?



How are rebates for purchasing products or services accounted for by an S-Corp? Is the rebate deducted from the cost of the product or service therefore lowering the expense or capital cost or is the rebate shown as income (taxable or non-taxable)? Are credit card rebates taxable or non-taxable income?

Accounting For Loans Made To Business By Owners/Partners/Shareholders

Client is two unrelated people with two businesses: an LLC that owns the building and an S-Corp that pays rent to the LLC. A CPA (not used anymore because I, a partner's husband, am doing the books/taxes) set them up this way. Of course, both businesses needed up-front money to operate and both people contributed. The CPA advised that each person put in $500 in the S-Corp booked as "Owner's Capital/Equity" and additional contributions be booked as credits to "Loans By Owner" for both businesses.

Now, the businesses are making money and the two people are gradually getting their money back. I've been simply booking these payments as debits to the "Loans By Owner" accounts. At tax time, let's say the S-Corp netted $20K after expenses/depreciation. Then $10K is passed to each owner's individual 1040 to be taxed. It seems unfair to be taxing this as income because all of it is just a repayment of the "Loans By Owners" money that was already taxed at some point previously, so I'm wondering if I'm accounting for this money correctly. Should there be an expense somewhere for these repayments that will reduce the net income for the businesses to zero? Also, should/can there be interest charges/payments involved here? Help is GREATLY appreciated!

TaxShack 10:02, 22 Aug 2005 (CDT)

I think you are handling the additional contributions correctly by applying it to the balance sheet in "Loans to/from shareholders" account and debiting the same account when the loan is paid. This means that both the contributions and re-payment have no effect on P&L, i.e. the 20K in your example is pure profit tatally unaffected by the loans proceeds and re-payment and should be taxed normally.

It will be interesting to see what other tax professionals have to say about it.

Abdul H. Khan

I agree that the current procedure is correct. In both an LLC and an S corp, the owners are taxed on the income earned by the entity when it is earned, without regard to whether the earnings have been distributed. Distributions are tax-free return of capital or loan repayments up to the amount of the capital contributed and earnings retained or loans originally made.Janie 16:55, 31 Aug 2005 (CDT)

Private Annuity Trust

Can an individual contribute a piece of improved real property with a basis of 2.0M and a FMV of 5M to a Private Annuity Trust w/o a tax issue? Then can the Private Annuity Trust sell the property so there is cash to provide for the annuity payments and not be taxed on the basis v. FMV? The annuity payments will be taxed as ordinary income to the beneficiaries? The consequence if an annuitant dies before the final payout? Can spouses be considered one annuitant and survive the death of a spouse? Thank you. CW Allen--Wadelin 09:26, 23 Aug 2005 (CDT)

Like Kind Exchange Intermediary

Can someone please define "qualified intermediary" when performing a like-kind-exchange transaction involving investment rental real estate? Thank you. Don Dfranklin 12:51, 25 Aug 2005 (CDT)

A qualified intermediary (QI),per Reg.Sec. 1.1031(k)-1(g)4, is a person who is not the taxpayer or a "disqualified person" and who must do the following:
  • Enter into a written agreement with the taxpayer (the exchange agreement) and acquire the relinquished property from the taxpayer and transfer it to the buyer of the taxpayer's property. The QI must also acquire the replacement property and transfer it to the taxpayer.
  • Enter into agreement with the buyer of the taxpayer's property. This can be done by later assignment. Note: It appears that if all of the parties--taxpayer,buyer,and QI--sign the assignment, then all are notified in writing.
  • In a deferred exchange, when the sales proceeds of relinquished property are held ina an escrow account, this escrow account must not be held by a related party, which the regs. refer to as a "disqualified person" (Reg. Sec. 1.1031(k)-1(k).
Paul A. Lounibos 16:35, 7 Sep 2005 (CDT)

263 a calculation

dedaction for dependent

child study in colledge 27 yeas old, no income ,but colledge in other town. Can parent claime him as is dependent on tax return ,if they pay for all child expences. Eugene

Without glancing at any tax resources my understanding is yes since they provide over 1/2 his support. --Gregg Gillaspy, CPA, CFP 22:17, 25 Aug 2005 (CDT)

cash (check) received in error from a nonqualified annuity

A client did a 1035 exchange with his commercial annuity (nonqualified). The client decided immediately after doing the exchange that he didn't want to have his annuity with the new insurance co. he had selected. So he asked the new insurance co. to transfer the money back to the insurance company he originally had his annuity with (i.e. cancel the 1035 exchange). Instead, the new insurance co. issued him a check for the value of the annuity. Thus a distribution took place.

Because it's a nonqualified annuity and the new insurance co was not subject to rehabilitation, conservatorship, insolvency, or similar state proceeding, the amount received above his investment in the annuity is taxable as ordinary income (because he can't do a 60 day rollover like one can do for a qualified annuity).

How can this situation be reversed/corrected, etc? I'm certain the client will receive a 1099-R from the new insurance company unless something can be done. The client does not want to pay ordinary income tax on the accretion amount in the annuity. He wants all funds back in the annuity.

I've been unable to find literature on how to resolve this type of situation and advise the client accordingly.

Thanks for your assistance. Joel Shapiro, CPA

Vacant land

Taxpayer owns vacant land as an investment. Taxpayer incurs costs such as real estate taxes, insurance and maintenance costs during the year. Can the taxpayer capitalize any or all of these costs? Can the taxpayer deduct the real estate taxes and capitalize the other costs? Is this in any way considered a passive activity?

Yes the taxpayer can capitalize these "carrying costs" by attaching an election under Reg. Section 1.263 to their return which state what they are how much the expenditures were. We use Lacerte's tax program which has this as one of its featured elections. If it is investment property I don't see how you truly can deduct the real estate taxes and capitalize the other "carrying costs"...or pick and choose how to handle these. No it is not passive in nature. --Gregg Gillaspy, CPA, CFP 22:32, 28 Aug 2005 (CDT)

spouse social security no.

i have a client. he got married this year. he went to another country for his marriage and hense, his spouse is living in another country. he's a permanent resident in the U.S.A. My question is can he file his taxes for current year as married filling jointly eventhough his wife is living in another country and she doesn't have a social security number?

Will need a Social Security number. David, CPA

I had the same situation, we applied for a TIN and it went much fasterDbtax 16:00, 30 Aug 2005 (CDT)

Self employment tax on retired ins agent benefits

The insurance company is reporting retirement benefits on form 1099 Misc Box 7 and the IRS is subjecting the amounts to self employment tax. Agent/client is frustrated w/ me and I cannot find NO authority to support his contention that other retired agents are getting IRS to drop the S/E tax assessment. He, of course, wants me to do the same for him.

Any help out there?

GM --GAM 14:39, 29 Aug 2005 (CDT) I had similar situation, applied for a TIN number and filed MFJ.

A taxpayer appealed this issue to the Ninth Circuit Court and prevailed. Congress subsequently amended IRC Section 1402 to

hold that retired insurance agents' residuals are not subject to self-employment tax. See AOD/CC-1997-012, (December 29,1977)-- William R. Jackson V. Commissioner.

Paul A. Lounibos 16:09, 7 Sep 2005 (CDT)

Tax Forms for YR 1990 & 1991

I would like to know if there is a web site where I can download fed. and ca. state tax forms for free? Especailly prior tax years, for instant 1990 and 1991. Please advice.

Thank you,

--Thesheik2001 18:47, 29 Aug 2005 (CDT)

The website has forms and publications for current & prior years available for downloading & printing. As for California, I'd look into the website for the same.

Personal residence in LLC

Two unmarried taxpayers form an LLC to hold their personal residence with intentions of retitling it to their personal names right before they sell it to take advantage of the gain exclusion. Won't they need to own it personally for 2 years to exclude the gain? Won't they realize gain when they distribute it from the LLC?Brengi 19:22, 29 Aug 2005 (CDT)

"Annual incremental income tax rate": clarify

This is my first time on this forum, so i appologize if this question has been asked or seems trivial, but....

I am doing a present value annalysis of a company's plan to produce a certain product (in this case the product is solar collectors). Im using a 1983 report's equations to do this (because its very thourough), and I am a little confused on what it calls the "annual incremental income tax rate".

The way it is used in the equation doesn't make it obvious, but is it just the average income tax of the company? or maybe the rate of increase of the income tax? The article is a little vague on this

I was hoping someone could give me some information on this, and if possible suggest ways to find values for it (in 1983 a similar company's annual incremental income tax rate was 18%).


option to purchase

Are payments received by a landlord in an agreement where the tenant pays rent plus an additional amount that represents a option to buy the property construed as income. Or are the option payments an advance payment on future sale. If the payments are income, what is their nature. The option payments are not refundable and are forfeitable if the option isn't exercised in a specified time.

Basis of property

Trying to determine a basis of property - I am dealing with a farm that had been rented and reported on Schedule E in previous years. Farm was owned, and titled in my clients name and his brothers name 50/50 (my clients spouse had not been on the title.) My client passed away, and the farm was sold for 950k by his widow and her brother and law. The settlement statements and the real estate transfer form have the brother in law and my clients spouse named AS WIDOW of...and she was required to sign a termination of decedents property interest at closing. My client had a will leaving all residue of his estate to his wife. What is her basis? 15:37, 30 Aug 2005 (CDT)Dbtax


Why can't I upload a Word or Excel file?

Why can't I upload a Word or Excel file?

Gregg - I've asked a question on your user discussion page for clarification.
Tdoyle 22:33, 30 Aug 2005 (CDT)

Sale of personal residence with acreage to be subdivided

a person bought a home in 1990 on 50 acres of land and lived in this home until selling it with an acre of land in July 2005. The 49 remaining acres he has subdivided into 10 plots of 4.9 acres and will be selling them in the near future. Will there be a capital gain on the sale of these plots and if so how is it calculated?


Off the top, you should be able to qualify more than 1 acre as personal residence, so I would sell the adjacent contiguous lots last or for the best price. Also be careful on the 15% rate calculation. You may also have state income income tax to consider. But other income that you have may also get pushed up in higher tax brackets and other deductions will be disallowed and also alternative minimum tax may kick in. In other words, the calculation is complicated and you may want to work with someone that has good tax planning software for different scenarios, so you know your after tax income as they sell or the worst case tax bill. Sheldon 12:30, 24 Sep 2005 (CDT)


A and B find a home to buy and fix up. A takes title to the home. B fixes it up. A reimburses B for rehab costs. After it is fixed up, the house is appraised and A sells the home at the appraised value to B. B borrows the down payment from a relative and takes out a bank loan to buy the house from A. Soon after closing, A writes a check back to B to reimburse him for his down payment and to pay him a "maintenance allowance." I am of the opinion that the basis of the house to B is the amount he pays at closing and that the payments received after closing are ordinary income to B and an ordinary deduction to A. My client disagreed and hired someone else who said he could reduce the basis of the purchased home by the payments made after closing as opposed to picking them up as ordinary income. Am I right or wrong?

offsetting self employment taxes where a business has a gain and farm a loss = negative loss

I have a farm and am self employed. The Turbo Tax professional tax program offset my gain from business with my farm loss resulting in no self employment taxes. The IRS has submitted a bill saying that I cannot offse the farm loss to the self employment business gain. Is that correct.

Was the farming activity reported on Schedule F or a Form 4835? Intuit team, we need more instant and conveinent emailing capabilities here. I think in some areas there is atleast a link to email the person listed somewhere on the left side.--Gregg Gillaspy, CPA, CFP 12:27, 2 Sep 2005 (CDT)

Lacerte workflow solutions semina

Is this seminar worth attending? I've been using the Lacerte program since 98' I would appreciate any input from someone who has attended these seminars in the past. Another solution maybe "webinars". Is this a worth the time and money?

Sale of Personal Residence

Can you have a sale of a personal residence when the taxpayer had the residence demolished before he sold the property? Actually, all that was sold was a piece of land since there was no home left on it. Taxpayer met all other requirements of Section 121 for excluding gain e.g. two of previous 5 years as main home etc.

I don't know of any other requirement that the home has to still exist. In fact, I would think it wouldn't make sense especially in storm situations like a hurricane. The owner should still get the Sec 121 treatment. Sheldon 12:10, 24 Sep 2005 (CDT)

Gift or Inheritance When Lifetime Rights are Waived

I have a client who was deeded property by his mother who maintained lifetime rights to the property. The property was her primary residence. When the mother had to go into a nursing home, the nursing home said she could waive her lifetime rights to the house which she did according to my client. The mother has since died and my client has sold the property in question.

My question is whether or not this transfer of assets has to be treated as a gift or an inheritance. My client says his siblings' accountants have told them it could be treated as an inheritance. My thought was that since the mother did not keep her lifetime rights to the property up until the time that she died, then this has to be treated as a gift. Does the fact that this was intended to be an inheritance have any bearing on the matter?

Tax Treatment for Building 4 Homes on Land Held 10 Years

My client has 5 acres they are subdividing with a culdesac and intend to build four homes that they will in turn sell. They have owned the property for over 10 years. Will they be allowed capital gains treatment if they develop the property by building the homes or would they have to subdivide and sell as "lots only" to avoid being taxed as ordinary gain?Purplette 17:12, 2 Sep 2005 (CDT)

The basis of the land will need to be split out, but they would get capital gain treatment. If they build, it is a question of what portion is long-term. Long-term treatment would apply to the land portion of any transaction. But if the sale happens within a year from the completion of the home, part of the gain would be short-term gain capital gain. Sheldon 13:13, 24 Sep 2005 (CDT)


Who pays the taxes on the inheritance the Estate or the benificary?


What is the net worth of the Estate? --Gregg Gillaspy, CPA, CFP 23:31, 2 Sep 2005 (CDT)
Usually that is determined by the decedent's will or trust. If the decedent died intestate,then it depends on State law.

Paul A. Lounibos 15:26, 7 Sep 2005 (CDT)

Payroll tax on Nonqualified Stock options

My wife received nonqualified stock options from her employer.

Upon her death, these stock options became fully vested and transferred to me.

When exercised, the difference between grant price and market price is taxed as

ordinary income. This is my question. Do payroll taxes need to be paid as

well? If so, would 7.65% X 2 need to be paid?

Stewart R. 09:01, 5 Sep 2005 (CDT)

When I left my former place of employment, I was allowed to keep some non-qualified stock options for a period of time. I recently exercised some and noticed that FICA and Medicare taxes were withheld at 7.65%. My former employer matched the other 7.65%, even though I was no longer their employee. I would think the same would apply in your situation. The former employer will withhold 7.65% and match the other 7.65%.

--McCPA 16:24, 8 Sep 2005 (CDT)

When a nonqualified stock option is exercised, the excess of the fair market value of the stock received over the exercise price is ordinary income, subject to income and employment tax withholding. Goose 23:21, 13 November 2005 (CST)

Tax Refund Bank Products...Filing tax returns in January

I recently met with some sales reps from a tax software vendor who were tax practitioners themselves. They caught my attention with something I had always shunned. Utilizing BANK PRODUCTS to get taxpayers their refunds quicker. When one said he himself made $9,000 plus on his highest day doing this type of work and he had a number of $8,000 plus days, my attention was all his.

We recently moved into a newly built building which is next to the largest movie theater in town. Also, a bank is placing a facility within this new building. I'm considering setting up a company separate from the CPA firm so there is really no visible connection between the two and running a separate tax prep business which, in essence, would compete against H & R Block. Somehow I think the movie theater or bank could provide opportunities to make this happen.

Does anyone have any practical experience doing this? Suggestions, tips, do's and don'ts? Thanks very much. You also can email me directly at --Gregg Gillaspy, CPA, CFP 06:39, 7 Sep 2005 (CDT)

Last year, our office began doing the bank products, after many years of debate. However, to stay competitive, we had to offer the products. We are a busy tax preparation and financial planning firm. I have 5 full time tax preparers in addition to myself. I contracted one existing employee in my office to process the bank products. She works off a straight commission and has incentives to work the products. Next tax season however all of my employees will be processing the bank products. The transition went smooth, and the work involved was simple.

We also are in a very busy area, near an H&R Block. And as you may know, their bank products are very $$$$. We cut the expense just under H&R's and brought in a good deal of new business (more in the late Jan - mid February period). My biggest concern at the time was issues with my broker dealer/u4 applications, etc. I did not want to become personally involved. However, after further research, I wouldn't have had a problem due to the fact it is still considered tax preparation service which is already disclosed on my U4. Basically, your company doesn't collect any "finance charges", you simply are charging a processing fee that is added to your tax preparation fee. Good luck!

Paula Wilson

I have a client who leases his employees. One of the benefits of the leased employee is health insurance. My client has "leased" himself out and gets a W-2 from the leasing company. The client is a sole proprietor, reporting income on a schedule C. All taxes are taken from his paycheck. How is this handled for tax reporting? Do you back out the employer share of employee taxes and insurance on the schedule C, or do you just leave the owner in with the leased employee expense?

How do I find the responses to this question?

S-corp shareholder distribution exceeds basis

How is the shareholder distribution reported when it exceeds the shareholder basis? Is it reported on the K-1?

The distribution in excess of basis is not reported on the K-1. It is the shareholders responsibility to compute the resulting gain from the distribution in excess of basis and reported on their individual return. The total amount of the distribution is reported on line 16, whether or not any part of it is in excess of basis. Basis Limitations for K-1 Losses

I do agree with the above answer, but would add that when you know that the S corp is in this situation, it is advisable to include a paragraph in a shareholder letter that part of their distributions received may be taxable and that they should consult their tax advisor. This is particularly advisable, if you are not the shareholder's personal tax advisor. Sheldon 13:12, 24 Sep 2005 (CDT)

Buying a Tax Prep Franchise

Has anyone purchased or considered buying a tax prep franchise, like Liberty Tax Prep?Atmco

I saw in an email on or on TaxTalk with Kleinrock that Liberty Tax was the worst franchise outthere available. Don't know much other than what I read. --Gregg Gillaspy, CPA, CFP 21:47, 12 Sep 2005 (CDT)

Contributing to a Roth & Simple IRA (Self Employed) in the same year.....

Can a taypayer contribute $3000 to a roth IRA in 2004 and in the same year make a deductible(self employed) Simple IRA contribution in the amount of $3600 if the taxpayer has self employment earnings to support the deduction?

Yes, they are eligible regardless of the amount into SIMPLE IRA. I use Lacerte software, and it illustrates in the worksheets the calculation of eligile contribution into the ROTH.

percent of life insurance in a 412i


Taxability of Death Benefit - Annuity

I'm struggling with an issue and could use some help.

I have a client whose father died in July 2005. He had an investment account from the 1970s until June 2005. He emptied out his investment account and purchased a single-premium Indexed Annuity, for which he earned a $40,000 bonus.

After owning this annuity for one month, he died. I know that tax is due on at least one of these transactions. My confusion is determining which one.

1) I know he must pay tax on the gain on the investment account closed in June on his final 1040.

2) Now, for the annuity, let's assume he purchased it for $380,000 and the death benefit is $420,000 (the $40,000 bonus).

It is my contention that the estate will show the $420,000 in the gross estate and pay estate taxes if the estate exceeds the limit. Then it will be distributed to the beneficiaries tax free.

However, the beneficiaries were told from an attorney that it will by-pass the estate and will be passed directly to them. Whether or not I agree is not the issue. If it does pass directly to them, is the entire amount of $420,000 taxable or just the $40,000 difference?

I have limited research tools available and the few I do have are not giving me a clear answer - if there is one. Any help will be greatly appreciated.

Rayanne 09:18, 12 Sep 2005 (CDT)Rayanne

I have a hard time believing the whole $420,000 would be taxed. In annuities I believe it is only the appreciation which is taxed and it is at ordinary income rates. --Gregg Gillaspy, CPA, CFP 21:44, 12 Sep 2005 (CDT)

The annuity is taxed as it would be to the owner. The taxable portion is the $40,000 difference. Mike Guy, CPA

sales tax deduction

Any word of the sales tax being deductible in 2006?````taxnut

Payroll Taxes

A client has paid payroll taxes for a C Corp partially and was directed by an attorney to designate the partial tax payments as "Trust Taxes" which they think is payment of the employee portion only. They are posturing for a possible bankruptcy which they think will forgive the "non Trust" portion of the taxes. Does anyone have any experience with this type of problem??

Section 121 Exclusion Allowed?

I'd appreciate any help anyone could give me with this. I asked the question a couple of weeks ago and got no response. Maybe I didn't give enough information. My client lived in a house for 35 years. The house had structural problems and was not considered worth much compared to the value of the land that it was built on. The owner donated the valuable parts of the dwelling (redwood beams, brass hardware) to a legitimate recycling agency and received a receipt for the donation. Then he had the house demolished and he sold the property. I would love to say that he's still eligible for the $250,000 exclusion of gain on his personal residence since he meets all other requirements. The question is, did he actually sell his personal residence? I'm worried that what he sold was only land! Thanks for your advise.

Have you considered §121(d)(5) and §1.121-4(d)? It is an involuntary conversion provision that works in conjunction with §1033 and perhaps the exact facts and circumstances of your client fit within its scope. Peter C. Gatto, CPA 02:11, 14 Sep 2005 (CDT)
Another thought - did the buyer ask the seller to demo and remove the house? If that was the case, I don't see why §121 would not still apply. (As opposed to the seller demolishing the old house, building a new house and immediately selling it.) Facts & circumstances, facts & circumstances . . . Peter C. Gatto, CPA 14:35, 14 Sep 2005 (CDT)

The property was his personal residence for 2 of 5 years, so I see no problem, even if the home was purposely demolished to get the most value out of the property. An auditor could try to argue the property was converted to another use first, but I think the exclusion would hold up. In my experience at closings of real estate now, title companies now ask the question of whether it was used as the owners personal residence for 2 of 5 years to determine whether a 1099 needs to be issued to the seller.Sheldon 13:10, 24 Sep 2005 (CDT)

I see the key issue as what the sales contract says was sold. Since the seller demolished the property first, the sales contract may only be for a piece of land. No Sec. 121 exclusion for the sale of land. However, if the sales contract said the sale was for the house and land, but called for the seller to demo and remove the house to fully perform the contract, then it would be okay. Peter C. Gatto, CPA 00:15, 25 Sep 2005 (CDT)

Self Employment Income Possible from S Corp?

My client is the sole owner/member of an LLC in Ohio. However, he has elected to file form 1120S for the LLC. Should he pay self-employment taxes on his 1040 for the net earnings of the LLC (as he would have had he not made the 1120S election)? Or does he have to go through the trouble of setting up a payroll for himself to pay these taxes?

I believe you have to do the payroll and payroll tax game. However, this allows "Draws" that avoid P/R tax as long as you appreciate "Basis" issues - which is a serious hot button with the IRS. I have one client audited for that so far and the auditor promised more to come to those with Sub S clients.Gary 16:01, 15 Sep 2005 (CDT)

Do not pay FICA taxes on form 1040 since income from S Corp is not from "self employment. S Corp dividends are not subject to FICA. Determine the fair value of members services performed for the Corp (how much would you pay someone else to do perform the duties?)and pay that amount as payroll(w-2). How about $36,000? Ignore the profitability of the whole Corp activity. Do not worry about audits!!! The IRS has mentioned this as a "hot button" for years as with many areas and have not followed thru by increasing audits. Only saw 2 individual form 1040 audits this year out of 1,000 files returns. David, CPA 14:41, 22 Oct 2005 (CDT)

Taxation of services performed overseas for US customers

Foreign companies (partnership and corpoaration created under law of foreign countries) and foreign individuals develop web-sites for a US customer. All work performed in foreign country, by residents of that country, and the product (web-site code) then send through e-mail or regular mail to the US customer.

Is this income of the developers taxable in the US ? How the customer should report to the IRS about payments he mades to the foreign developers (e.g., 1099 or some other form) or he is not required to report at all ? What about tax withholding, if any ?

Contribution to SEP

I have heard conflicting answers to the question as to when a SEP must be fully funded. One answer is that it must be funded by the due date, including extensions, for filing the tax return for the year for which the contribution is being deducted, even if the return is filed prior to that extended due date.

The other answer said that funding must in fact occur on or before the date the return is filed, even if the extended due date is later. Which is correct?

The rules for SEP's are spelled out in IRC 404(h)(1)(B). This code sections states "if such contributions are made on account of such taxable year and are made not later than the time prescribed by law for filing the return for such taxable year (including extensions thereof)." When the return was actually filed has no impact on "time prescribed by law". As long as the return was in fact extended, you have until the extended due date. Stephen Wright 18:01, 17 Sep 2005 (CDT)

Depreciation - bulk fertilizer storage building

A farm supply store built a building for storing and blending bulk fertilizer. Do I need to depreciate the building over 31.5 years or can he write it off sooner?

I am assuming you are the tax advisor because 1) you say, " . . . can HE write it off sooner"; and 2) you know about the 31.5-year life for non-residential real property. With that said, the 31.5-year life for non-residential real property went away over 12 years ago. In May of 1993 the life became 39 years for GDS and 40 years for ADS. So, if you are a tax advisor, I would buy CCH's 2005 U.S. Master Depreciation Guide ( It costs only $60 and then you can determine not only the life for the building, but also for any other items constructed. Peter C. Gatto, CPA 00:47, 23 Sep 2005 (CDT)

estate tax return

does an estate tax return have to be filed for an estate of less thab 1,500,000?

Installment Sale on Land possibility

Can apprximately eight acres of farmland be sold to a builder by an elderly taxpayer(not business property or main home) under an installment sale to generate a steady flow of income to maintain the owners quality of life?

Of course. Sections 453 and 453A and the regulations thereunder control. Your tax advisor can talk you through it and can probably also speak to the risks.Peter C. Gatto, CPA 21:17, 22 Sep 2005 (CDT)


If a Corporation or a parnership refinances an existing mortgage and receives cash, is there any income recognized?

All the entity has done is take out a (larger) loan. Loan proceeds do not constitute income since the mortgagee must pay back the loan amount. Are you perhaps leaving out some other fact; e.g., what the entity will do with the proceeds? Peter C. Gatto, CPA 00:28, 23 Sep 2005 (CDT)
However you will need to recharacterize a portion of the interest paid as "investment interest expense" and report this amount on the appropriate line on the Schedule K-1 because this constitutes a debt-financed distribution.

Jacqueline M. Reardon, CPA 11:37, 4 Nov 2005 (CST)

Section 179 Recapture

Reimbursement of Child Care Expenses by Church

Can a Church reimburse parents who attend an evening Bible study for the child care (babysitting) expenses they incurred in order to participate in the Bible class?

Can the reimbursement for the child care expenses be paid to the parents, or to the child care provider (babysitter), as long as a receipt is provided to the Church?

If paid, should it be counted as taxable income to the parents?

Another CPA and I are in disagreement. He thinks that it is taxable income to the parents. I disagree.

The church normally provides on-site child care via children's activities (Sunday School) on Sunday mornings when the adults are in Bible study, so I don't see this as being too different if the child care is performed off-site, but the expense covered by the Church. Training the congregation in the gospel of Jesus Christ is one of the Church's main functions. I do not think that it violates the IRS rules for nonprofits regarding 1) inurement and private benefit, 2) substantial lobbying activity, or 3) political campaign activity.

I have read several IRS publications but did not see this scenario addressed. Your input and any related documentation would be appreciated.

Thank you,

Aric 10:26, 22 Sep 2005 (CDT)

I think the CPA you are discussing this with is correct *based on the facts as presented*. I see the problem as each set of parents is getting their own childcare provider and is being reimbursed for a personal expense. (The parents are not in the business of receiving Bible Study lessons.) There can be no Dependent Care Plan or Accountable Plan in this situation so I do not see how the reimbursements can be anything but taxable to the parents. That being said, I think the church can create a situation whereby the parents are not taxed.
1) The church probably has teenagers who would love to help the church and make some money at the same time. How about getting some of the teenagers to come to the church and watch the kids at night? The church would pay the teenagers directly. I believe this would hold up since getting volunteers during Sunday morning mass is easy, while getting people to volunteer at night is more difficult. Therefore, the payments are for the benefit of the church in furtherence of their stated mission. The income would be taxable to the teenagers, but if they did not make enough money, there would be no tax. Additionally, since it is earned income and not investment income, the kiddie tax rules would not apply. (This, of course, would only work for children who are old enough to stay up while the parents are in Bible study.)
2) Is there a local daycare provider who would agree to watch the children on the church property? If they are a member of the church, perhaps the church could negotiate a lower rate. The church pays the provider directly. Everything else the same as option 1 above.
3) Alternatively, is there a local daycare provider who would agree to open their facility at night? If they are a member of the church, perhaps the church could negotiate a lower rate. The church pays the provider directly. Everything else the same as option 1 above. (Where I live, there are many "child-friendly" businesses that open at night (that would not otherwise be open) for a "Parents' Night Out". Parents bring the kids and then have a kids-free evening to themselves. This could be an income generator for a local business and if a deal could be worked out, not cost the church any more than paying a bunch of separate babysitters.
4) I believe it gets dicier with children who are so young that they need to be in bed before Bibly Study is complete. The in-house babysitter is for the convenience of the parent, not the church. So even if the church pays the babysitter directly, you may be on shakier ground. Since there is no direct guidance, it's a tough call.
I did a brief search on RIA's Checkpoint and also could not find anything exactly on point. I think this is a situation calling for extrapolation of other rules to your situation. If the night-time childcare providers were volunteers, monies paid by the church to them would only be included in income to the extent it exceeded the volunteers' expenses. (See Rev Rul 79-142, 1979-1 CB 58.) Reading this revenue ruling may give you some other ideas on how to set-up the child care.
Good luck,
Peter C. Gatto, CPA 22:23, 22 Sep 2005 (CDT)

Leased Employees by Sole Proprietor

I have a couple of clients who are leasing their employees, both are sole proprietors filing Schedule C's. Each of them are part of the leased employee group. By doing this they are eligible for group health insurance at better rates, they are included for workmen's comp and for TDI. I am just wondering how to handle this on a tax return. I prepared one return by backing out the FICA/MC and health insurance and letting it flow to the 1040 as it normally would with a Sched C and compared it with leaving the leased employee expense in tact. The difference was minimal. None of the material I've looked at discusses this situation. Any thoughts from anyone out there?

If what they are doing is legal, I don't understand why you would back out the FICA (OASDI & MC). If they are employees, they are getting W-2s and it is being taken care of that way. Leased Employee Expense on Sch. C and W-2 income on page 1 of the 1040. I would be more concerned with your applicable state law and whether a sole proprietor can do what your clients are doing. I would also be worried about whether what they are doing could be considered insurance fraud. You have to consider that some people break the law inadvertently (obviously some do it on purpose) so you may want to check into that as well. This all may be perfectly legal, but until I was certain of both of these issues I would not be signing these returns. Peter C. Gatto, CPA 01:04, 23 Sep 2005 (CDT)

Income taxation of a Decedent Estate/Beneficiaries

Question 1. If money is kept in the Estate and not distribute to beneficiaries, who is responsible for its tax liability?

Q. 1 Part 2 What happens when money is distribute to beneficiaries after estate pays its tax liability?

Question 2. Does step up basis apply to to residential rental property when sold?

Thank you adn look forward to your response.

LarrySchiavo 16:03, 23 Sep 2005 (CDT)

P.S. please provide section of tax code to answer if possible.

1. The basic rule in taxing estate income is that the estate's

taxable income is taxed only once, either to the estate or to the beneficiaries, or in part to both. The determination of taxable income is subject to the general principles of taxation for individuals except that the estate is generally allowed a deduction from income for certain distributions to beneficiaries. IRC &661. To the extent income is taxed to the beneficiaries, the estate is treated as a conduit and is not taxed. Therefore, the income tax of the estate and its beneficiaries are related.

1a. If the estate did not distribute the income during its tax

year, the executor can still elect to distribute income within 65 days after year-end and treat this as a distribution during the tax year. However, if the estate has already filed the tax return for the year in question and paid the income tax, then subsequent distribution to the beneficiaries should not be taxed again. If a distribution creates a deduction for the estate, the value of the distribution, to the extent of the estate's distributable net income(DNI), is not taxable to the estate but is included in the beneficiaries' taxable income. IRC &661(a), 662(a).

1b. See above.
2. Generally, residential rental property and other real property

receive stepped-up basis as of the date of death of the decedent or the alternate valuation date. If the latter valuation date is used, an election must be made in a federal estate tax return and it must reduce the taxable estate and thereby the federal estate tax paid. If the property was sold within six months of the date of death, the sales price is generally acceptable as the stepped-up basis. The holding period is considered long-term in this scenario.

Paul A. Lounibos 14:01, 3 Oct 2005 (CDT)Paul A. Lounibos

estate tax treatment of jointly held property

my friend purchased stock XYZ in 1980 for $10,000.

in 1990 she retitled the stock with me as joint tenant (JTWROS). she continued to receive and report for Form 1040 100 % of all quarterly dividends.

no gift tax return was filed, but should have been.

she died in 2005. I received the stock certificate from her executor and reregisterd it in my name alone. recent quoted price is 200,000.

what is my cost basis?

estate attorney wishes not to include my friend's undivided half interest in her estate, though probably there will be no federal estate tax. KeithTaylor 03:24, 24 Sep 2005 (CDT)

Only the half interest would be included in the friend's estate. The half that was gifted to you would have a basis of $5,000, but the other half gets the full step-up in basis which would be $100,000 if that is the date-of-death (DOD) value. In effect, it means that if you sell right away, you would have to pay 1/2 of the full capital gain.Sheldon 12:30, 24 Sep 2005 (CDT)

Adding your name on property does not always mean a gift was made to you. If you feel a gift did not occur (she continued to treat as if 100% her asset as per dividend reporting), that there was another reason to place your name on the property , your basis will be the value at death $200,000. You will probably have no problems with IRS if audited because of dividend reporting for past 15 years. (+98% 1040's do not get audited)David, CPA 14:55, 22 Oct 2005 (CDT)

Taxability of foreign income

I have a client residing in a foreing country. He has created a corporation under the laws of the country in which he resides. How is the income he pays to himself to be reflected on his US Form 1040 (e.g. Schedule C). Is the net income of his busines the taxable component or only what he pay's himself?

COD or Sales Proceeds?

I have a sole-proprietor taxpayer who bought a motel business several years ago and took depreciation reducing his basis below the debt balance carried on the business. The taxpayer eventually was unable to make the payments and returned the business to the seller (holder of the contract for deed) in return for the cancellation of the contract and debt. The taxpayer was insolvent at the time.


-Is the balance of debt "cancellation of debt" or "gross proceeds" in calculating a sales transaction? (This ultimately leads to a large gain in which the taxpayer will never be able to pay the taxes).

-If 'cancellation of debt', how should this be property recorded on the return?...simply a note attached to the return as is done with other non-taxable COD?

Any help, thoughts and reference citations are much appreciated.

2005 definition of "qualifying child" for all 5 purposes

Was EXACTLY is the difference between 2004 and 2005?

childcare provider deductions

Should a sideline real estate business incorporate?

I have a w-2 mortgage broker client who is planning to: buy houses to fix-up and resell and/or buy properties and then offfer them as "lease to buy" or resell them.

I would like to hear some feedback on whether I should advise him to choose a business entity other than using schedule E or C on his personal return.

Thanks for the input. SERF

A single-member LLC files his tax return using Schedules C or E. An LLC is typically used as the form of business entity in the real estate industry. The principal reason that I would recommend that this client establish an LLC is for liability reasons. LLCs by definition limit the liability of the members and real estate, whether sales or rentals, can involve liability, from environmental concerns to fire to plumbing breaks to personal injury. Using an LLC to hold these properties will serve to protect personal assets from loss. Even better is to hold each property in a separate LLC so that other properties are not put at risk when one property suffers a loss.
Setting up an LLC is generally an inexpensive and painless process. The key is to make sure all property is titled in the name of the LLC.
Jacqueline M. Reardon, CPA 11:37, 4 Nov 2005 (CST)

Simple IRA, State Pension and 401K

A client retired in Jan 2004, receives a state pension and was a sole proprietor until Aug 31, 2005. In both 2004 and 2005 he made contributions to his Simple plan as both employee and employer. He is no longer self-employed and has taken a w-2 job. Under a state pension's provision, retirees are allowed to work up to 110 in a calendar year and still collect their pension. The client started this on September 1 and will continue until July 1, 2006. In 2005, his new employer will contribute $1,000 to a 401k for him and the client plans to contribute the maximum he is allowed. My questions are as follows: Is he allowed to make the maximum contributions to his Simple in 2005 or must he withdraw the amounts already contributed? If he is allowed to contribute to the 401k, is he allowed to contribute $17K or $18K? If he is allowed to have the Simple, is he also allowed a contribution of up to $18K to a 457 plan (also available from this employer)? Thank you for any input you may have. SERF

Traditional IRA - tax free withdrawals to purchase first home

I could not find an answer here. If I cash in part of a traditional IRA to buy a first home, is the withdrawal taxed?KeithTaylor 22:13, 28 Sep 2005 (CDT)

Yes, it is taxed at the client's rate, but there is not an early distribution penalty, form 5329 exception #9, page 3 of form 5329 instructions. User:Margo8350

There is a limit to $10,000 to avoid the penalty. In other words, only $10,000 of LOAN COSTS will be exempt from the penalty. Suggestion: only withdraw what the closing costs will be. NOT EVEN THE DOWN PAYMENT QUALIFIED for a client of mine.

You also need to be aware to avoid the 10% penalty, the withdrawal can only apply to closing costs and fees, NOT furniture, landscaping, and such. The IRS ruled against a client of mine for withdrawal of an IRA of $13,000 when the only credit toward the 10% penalty was the closing costs on the HUD statement. Not any repairs or any other normal costs --even making keys was denied!

Cancellation of Debt - Individual

Can expenses, such as service fees or settlement fees, be used to reduce income from cancellation of debt reported on Foem 1099-C?

A taxpayer utilized a third party to negotiate debt cancellation from credit card companies. There was a fee from the third party negotiator as well as settlement fees charged by the credit card companies.Bwilds 10:52, 29 Sep 2005 (CDT)

Assuming you are talking about credit cards used for personal purposes only, then no. The fees are non-deductible personal expenses. If, on the other hand, the taxpayer owned a business and the credit cards had both personal and business charges (or 100% business charges) that were cancelled, then a pro rata allocation would probably be safe. Please check all of these answers for yourself since neither you nor your client are/is my client. This information is for educational purposes only and in no way is to be considered professional advice or an opinion as considered under Circular 230 Peter C. Gatto, CPA 01:53, 23 Oct 2005 (CDT)
Also be aware that cancellation of indebtedness income may be excluded from gross income under Code Section 108 if 1) the cancellation is a debt discharge in a bankruptcy action under Title 11 of the U.S. Code; (2) the cancellation is a discharge when the taxpayer is insolvent outside bankruptcy (i.e., the taxpayer has an excess of liabilities over the fair market value of assets immediately prior to the discharge); (3) a discharge of qualified farm indebtedness; or (4) a discharge of qualified real property business indebtedness.
Form 982 is filed with the income tax return to report excluded income from the cancellation of indebtedness.
In addition a taxpayer is required to reduce his tax attributes when an amount is exluded from gross income as the result of a discharge of indebtedness for the first 3 reasons listed above. The taxpayer is then required to reduce any foreign tax credit, minimum tax credit, passive activity credit, and general business credit carryovers available to the taxpayer under Code Section 108(b)(3)(B).
Note that legislation was recently passed which may impact the "bankrupcy" exclusion.
Jacqueline M. Reardon, CPA 11:48, 4 Nov 2005 (CST)

Foreign tax credit and deduction

Generally, foreign taxes paid can either be taken as a credit or deducted on Schedule A. The entire amount generated each year must either be taken as a credit or deducted, a mixture is not allowed.

My question concerns a foreign tax credit carryover going forward. For example, in 2003 a taxpayer incurred $500 of foreign taxes and elected to take the foreign tax credit. The amount allowed was only $300, so $200 carries forward. In 2004, taxpayer incurs another $100 of foreign taxes. In 2004, can the taxpayer make use of the carryover of the foreign tax credit from 2003 since he incurred foreign income in 2004 (subject to limitations) AND deduct the taxes incurred in 2004.

I realize the Code states that foreign taxes paid in a year can either be credited or deducted, but that seems to relate to taxes paid or incurred in that year. Is it possible to take both the credit and deduction in the same tax year if the credit relates to one tax year and the deduction relates to a different tax year.


Mike--Tmwmaw 10:41, 30 Sep 2005 (CDT)

Goodwill versus Covenant not to compete (CNTC)

My client is selling his small business. The broker wants to allocate $$$ to a covenant not to compete which, for sure means ordinary income to my client. When he acquired the business there was an allocation to goodwill. Is there any way a current allocation to goodwill would be a capital gains transaction compared to the CNTC ordinary income treatment? Susan Hurrell CPA

Exceptions to tax penalty on Early Distribution

I would like to find a clarifying reference to details about what the exception #1 on form 5329, "In or after the year one turns 55" and has separated from work exception specifies.

Is it the birthdate to birthdate year or the calendar year of one's 55th birthday?


1) Client turns 54 in May year xxx1 but their actual 55th birthday is in xxx2.

2) A distribution is received year xxx1 after their 54th bithday due to employment separation.

Q: Is this considered their 55th year as stated in exception 01 form 5329 i.e. no early withdrawal penalty?

auto write-offs

Can we still for 2005 write off 100% of truck/auto if 6000lb test met?

Realizing stock losses to offset home sale gain

This is probably a simple question with a simple answer. I'm just looking for a sanity check.

For tax year 2005, I'm going to realize a very large taxable long-term gain on the sale of a house.

I have several equity holdings (stocks) which are currently showing unrealized losses. I have no hope of these stocks ever breaking even for me again.

Would it not be a good idea to dump all my underwater stocks and take the capital losses this year in order to partially offset the gain from the home sale?

Rlw 13:14, 6 Oct 2005 (CDT)

Good idea if the gain is taxable.David, CPA 15:00, 22 Oct 2005 (CDT)

accrued interest in an accrual general partnership

Can an accrual general partnership accrue interest paid to a partner before the interest is paid to the partner?

That is an accounting question, not a tax question. The answer is, of course. An accrual based partnership would accrue interest expense ratably even though it has not been paid. Peter C. Gatto, CPA 01:48, 23 Oct 2005 (CDT)

California apportionment for Unitary "mixed" returns

To whom it may concern:

I am seeking advice on how to calculate apportionment for a unitary group containing one financial corp with nexus, one financial corp without nexus, and several more non financial corps all filing as part of the same group.
Is it possible to have a calculation at 2 different rates for the same California Form 100? I need clarification on which rate to use.

One piece of info I received suggested I calc the one finacial corp with nexus at the higher 10% rate with the rest of the group at the lower 8.84%.

We had been previously calculating the whole group at the higher rate.
Are we overpaid? Any input would be appreciated. Thanks, Barb--Barb G 15:06, 10 Oct 2005 (CDT)

Deductable RV Interest

Is the interest paid to purchase an RV deductable? According to the salesman I can write off the interest on my taxes, but a friend of mine said that I can't deduct the interest because the loan that I obtained is not from a first or a second mortgage loan. Further more, the IRS allows a deduction only if the tax payer obtained a mortgage loan against your principle residence. Who's right on this subject? Your answers are greatly appreciated.--Thesheik2001 20:11, 10 Oct 2005 (CDT)

You can write interest off from a second home. If you can eat, sleep, and go the bathroom in it, it qualifies...including a boat. There are limits if interest paid on all mortgages exceeds $1,100,000. Your friend needs to take a tax class.David, CPA 15:05, 22 Oct 2005 (CDT)

Question from Anuenue

I have a client, sole-proprietor, however he wants to show his spouse as an owner in the business (for tax purposes)but does not want to create an LLC. The spouse does not participate in the business. Hawaii is not a community property state. Is there any way that a Sch C can continue to be done? Can I split the income and expenses onto two Sch C's with the same business name for SE tax purposes? This is for his 2004 return and he doesn't have or want to establish an LLC. I could use a quick answer on this problem. Mahalo


If wife does nothing for business, you should show it as so. How about forming a S Corp and show her as a shareholder getting dividends.David, CPA 15:07, 22 Oct 2005 (CDT)

Shareholder Stock Costs

What are the rules for capitalizing costs incurred for redeeming shareholder stock?


See IRC §162(k) for the general rule. Certain exceptions apply and there are many court cases you can look at to see if your particular situation would result in capitalization or current deduction. Peter C. Gatto, CPA 02:36, 23 Oct 2005 (CDT)

E$xcess 401(k) contribution

How do you report on the form 1040 for the current year that an individual who was contributing to more than one employer 401(k) plan exceeded the contribution limit of 13,000 for 2004?

Does the employee notify either of the employers and ask to amend their W-2?

On what line do you report the excess contribution as income?

Grantor Retained Annuity Trusts - filing requirements

Is there a separate filing requirement for Grantor Retained Trusts for filing the form 1041.

Is the income to the grantor subject to the SE tax if otherwise ordinarily the income would be subject to the SE tax.


Does an assessment or lien expire after 10 years? Does a tax assessment or lien drop off after 10 years? Confused about this rule.

IRA: What can be held?

Can I invest in real estate property inside of an IRA? Can I make payments on the mortgage while the property is inside the IRA or must I pay cash for the property? How are the rental payments and expenses teated? Fritz913 10:24, 13 Oct 2005 (CDT)

Inherited stock losses

How can one use such losses to offset gains from their own trading activity? Assuming the inherited losses(thru a trust) are all long-term, can one only offset long-term gains with them?

Change of entity from S corporation to LLC

What are the mechanics involved in changing grom a 5 person s corporation to a 5 member LLC during the current tax year ?

small US Based Business with some Foreign capital expenses

If I spend US dollars in Peru, for truck purchase,equipment and some labor expense, in order to import custom furniture, is this expense somehow, more difficult to document, since in Peru, much is done on a cash basis?

What's capital gain rate

To answer your question i think we need more info Shipkel 12:30, 18 Oct 2005 (CDT)

Mortgage Interest Deduction

I have a client that wants to give her live-in partner the interest deduction for their mortgage. The loan is in her name; the deed has both of their names. She does not work, so he is has been making the entire loan payment for the year.

I know that the rule is whoever is liable for the loan gets the deduction, but she hasa been told that as long as his name is on the deed she can "give him" the deduction by several different tax people. What am I missing?


I found two citations in CCH which address this issue:

1. An individual could not deduct mortgage interest that she paid

  on a debt that was the obligation of another party. Her 
  brother was the legal owner of the property at issue and was
  indebted on the mortgage loan. ALthough a purported trust
  agreement stated that the taxpayer was responsible for paying
  the mortgage interest, the court did not consider her to be 
  the equitable owner of the property. 
             J.Song, 70 TCM 745,Dec.50,897(M),TC Memo 1995-446

2. A taxpayer was not entitled to deductions for interest on a

  mortgage loan on her residence since her name did not appear
  on any year-end mortgage statements and she failed to prove
  that she was liable for the loan in question.
       T.Washington-Oglesby, 66 TCM 365,Dec.49,209(M). 1993-357

Paul A. Lounibos 17:04, 19 Oct 2005 (CDT)Paul A. Lounibos

New York state nonresident

I have a client who is a resident of California. He works for a New York company, but does 3/4 of his work (and time) in California, and 1/4 of his time working is spent in New York. I have heard that he is required to report 100% of his wages as New York income on his New York state tax return, and cannot allocate any of it as nonresident income since he is working in California for his own convenience, not for the convenience of his employer. Does anyone know anything about this? On his California return, would he then receive a credit for taxes paid to another state? Help, please.--FaithDarl 18:40, 18 Oct 2005 (CDT)

I'm not a tax professional, just a guy who's spent zillions of hours dealing with tons of complex tax issues. I think "what you've heard" is hooey. A CA resident is required to pay CA income tax based on the amount of time as a CA resident, end of story. In this case, that's 100%. A temporary out-of-state job doesn't make any difference. Please see the CA FTB FAQ. - Rlw 19:48, 18 Oct 2005 (CDT)

Well, I agree with your "hooey" comment regarding 100% paid to NY, but your response is incomplete and, therefore, dangerous. Perhaps you can explain the "complex tax issues" you work on that qualified you to answer the question (since you admittedly are not a tax professional). See below. Peter C. Gatto, CPA 01:33, 23 Oct 2005 (CDT)

The filing instructions for New York State part-year residents and non-residents ar contained in Publication 88, New York State Department of Revenue and Taxation. "IF you were a nonresident of New York State and received income from New York State sources you must file Form IT-203, Nonresident and Part-Year Resident Income Tax Return. You are subject to New York State tax on any income you received from New York sources while a nonresident".
Refer to and go to State and Local Tax Information.
Paul A. Lounibos 16:42, 19 Oct 2005 (CDT)Paul A. Lounibos

Faith - Here is, hopefully, a complete answer. Please check all of these answers for yourself since neither you nor your client are/is my client. This information is for educational purposes only and in no way is to be considered professional advice or an opinion as considered under Circular 230.
The general rule is that compensation for services is taxed where the services are performed. What you "heard" relates mainly to people who normally work in NY, but live in NJ, CT or elsewhere. They are trying to allocate income away from NY since it is a higher taxing state. When the work at home is for the convenience of the employee, then NY denies the allocation and 100% of their income is taxed in NY even though not 100% of their services as employees are performed in NY. This is not your client's situation (based on the limited facts given).
Your client will need to file NY Form IT-203 if his NY income meets a certain threshold based on his filing status. The instructions will have the amounts. Get the complete package from their web site as worksheets need to be completed in order to arrive at the proper tax. Assuming he meets the threshold, he definitely has to pay NY state taxes (but not on 100% of his annual income). Find out *exactly* where he worked while in NY since he may have to pay NY City, Yonkers or other local taxes. When doing the CA tax return (Form 540), you will need Schedule S, "Other State Tax Credit". Complete that schedule. The CA form will calculate tax on 100% of his income (including tax on the income while he was working in NY); however, on page 2 of CA Form 540 he will take the NY (state only, not city) credit (the credit code is 187). The credit cannot be applied against CA AMT. A copy of the NY return must be attached to the CA return unless you e-file for your client (then the NY return does not need to be sent to the FTB).
If this is going to be a common occurence year-in-and-year-out, I would suggest your client have NY withholding done by his payroll department. Otherwise he may have NY underpayment penalties and have way too much withheld for CA. (If he estimates a 75% CA / 25% NY ratio, then he can just ask that the W/H match those %s every paycheck regardless of where he is working. That would probably be easiest for the payroll department.) If his employer refuses, then he may want to pay NY estimates and reduce his CA withholding amounts.
Peter C. Gatto, CPA 01:33, 23 Oct 2005 (CDT)
UPDATE by Peter C. Gatto, CPA 16:45, 2 Nov 2005 (CST)
On 10/31/2005 the Supreme Court refused to grant certiorari in the case of a TN telecommuter who worked for a NY-based union. The NY case is Huckaby v. New York State Division of Tax Appeals, 04-1734.
NY's lawyers argued argued that NY was entitled to tax Huckaby's earnings because he chose to live in another state "solely for his own convenience." The attorneys' acknowledged that under NY's current interpretation of its tax laws the income would have been exempt if he were required to work elsewhere.
Based on the above, it would be very important to really find out whether he is truly working in CA "solely" for his own convenience. If the telecommuting issue is also for the convenience of, or required by, the employer, then it is not "solely" for your client's convenience. However, there is a difference between "partially for the convenience of the employer" and "required by the employer". I would read the case and the applicable laws very carefully.
If it turns out he is "stuck", then all of his earnings will be taxed in NY and he will get a CA credit.
Peter C. Gatto, CPA 16:45, 2 Nov 2005 (CST)

Help with selling my parent's home

Thank you for helping me out

My parents bought a house in 1989. The house is paid in full. My parents own the title to the house. My mom passed away in 1997 but I did not take her name off the title.

My brother and I have been living at that house and have been paying the real estate taxes on it. I have purchased a home, moved out and my brother is about to do the same. My father would like to sell the house early 2006

My father is a permanent resident who lives overseas. He is a French citizen, does not have any income here and has never filed a tax return form. He has a bank account here (joint bank account) and I have been paying the taxes on any dividends he could have received.

The house has doubled in value PPrice 307k Selling price 650K+ My father has not owned any other house in the US. This is the first house

What are the tax implications? Does the 250K capital gain or the 500K capital gain apply? What can be done if my father wants to give his children some money of the gain?


The $500K capital gain exclusion only applies to married couples filing joint returns, so it does not apply. The $250K capital gain exclusion also does not apply, assuming your father did not reside in the house for a period of at least two years out of the five years prior to its sale.
Please see IRS Tax Topic 701 and IRS Publication 523 for the full story. Gifting part of the profit is really an unrelated matter; check out the gift & estate tax rules.
That said, however, it may turn out to be advantageous for your father to gift the house to you (or your brother), rather than sell it outright. Your father will have to pay gift tax due to the net increase in value over his adjusted basis. But then the new basis will be the sum of your father's adjusted basis plus the amount paid in gift tax. Then, if you or your brother can live in the house for two years after the date of gifting, you or he can earn the capital gain exclusion. Again, this is all spelled out in Pub 523. You'll have to (a) decide if you or your brother can occupy the house for two years and (b) do the math to see if it works out beneficially to do so. - Rlw 16:18, 27 Oct 2005 (CDT)


I have a probate estate (Form 1041) that owns wildlife videos and photographs taken by the deceased. These videos and photos are now being purchased for movie and documentary rights. The estate did not have to file an estate tax return as total value of the estate was under the filing limit.

Now the probate estate is receiving income for these videos and photographs. How can I apply the value at DOD to offset this income? For example, if the estate receives $10,000 for use of video footage, do I show this on probate estate return as Sch C business income, and then offset it with inventory value of say $10,000 at DOD, so no taxable income? Or do I show on Sch D as income from sale of capital asset, and offset it with value at DOD of $10,000 (although I don't think this self created videos and photos would qualify as a capital asset). Any thoughts would be appreciated?

Pricewin 13:34, 27 Oct 2005 (CDT)



I have had trouble finding answers to Pension question and LLC. Here is the example.

I have a LLC which has been in business for 5 years. It is owned principally and run by one owner (owns 92% of stock). LLC has no other active member (other members are investors and passive members who do not run the company). LLC has 4 employees.

LLC will make substantial money in 2005. Owner/member wants to maximize his SEP IRA contribution to the maximum level. What, if any, contribution does the LLC also have to make to employees or other non-active members?

Data: No employee has been on payroll more that 1 and 1/2 years.

So, can the LLC form a SEP-IRA for 2005, and choose a waiting period of say 3 years for any employee to be part of the SEP. Then, can the LLC contribute the maximum to the owner/member of the LLC and contribute nothing to the employees who have not met the 3 year rule, and not be fouled with the non-discrimination rules??

Thanks for any help

Pricewin 13:33, 27 Oct 2005 (CDT)

For 2005, employer contributions to a SEP are limited to the lesser of (1) 25% of compensation ($210,000 maximum) or (2) $42,000. Employee contributions are limited to $3,000 ($3,500 if catch-up contributions are permitted). The plan is established by completing Form 5305-SEP, which is not forwarded to the IRS, and the contribution must be made by the due date (including extensions) of its tax return for that tax year to the SEP-IRAs that have been established for each eligible employee.
Nondiscriminatory employer contributions under a SEP must be made for each employee who has reached age 21, has performed services for the employer during at least three of the immediately preceding five years, and received at least a specific amount of compensation from the employer for that year ($450 for 2005).
Jacqueline M. Reardon, CPA 11:50, 4 Nov 2005 (CST)



US Savings Bonds & Sec 454 election

We are planning to have the executer make a 454 election to recognize all accrued EE-Bond interest on the decedent's final 1040 to offset nursing home expenses, etc. (Brackets are also low as there are only 3 months of income.) My research shows that an INDIVIDUAL beneficiary/joint owner who "inherits" the bond does NOT have to continue reporting the post-death EE-bond interest annually, even though the executor made the election regarding the bonds on the decedent's final 1040. (An individual beneficiary may make his OWN election to do so, but does not have to.)

However, I can't find anything "on point" (so far) as to whether the decedent's ESTATE (which is the owner of these particular EE-bonds) must continue reporting the post-death interest annually when the decedent's executor elected to report accrued interest on the final 1040. Since the estate, executor, and decedent are so closely related, I wonder if the rule is different and if the estate must continue reporting the annual incremental interest under the election made on behalf of the decedent.


"There are a number of optional ways to report the increment
on U. S. Savings Bonds as income:
  • <01>
  • An executor or administrator may elect to report the increment in value up tp DOD on the decedent's final income tax return.
  • <02>
  • The executor of a cash-basis estate may elect to report on its income tax return all the unreported interest on all of the decedent's bonds from the dates of purchase to the year of the election.
  • <03>
  • A cash-basis beneficiary whoo acquires savings bonds also has the option of either reporting the increment when she acquires the bonds or holding the bonds until maturity or redemption and then reporting the unreported increment as income.

  • Source: CCH -EXP, 2005FED,PARAGRAPH 24,906.35
  • Paul A. Lounibos 13:55, 1 Nov 2005 (CST)Paul Lounibos


    I have a client who started his business is 2004 in which he is purchasing residential real estate and renting the property for income.

    This client has recieved a rental home that is within a Quit Claim Deed. Although the client does not have the title to this rental home, he has received rental income and has expensed rental expenses for the year 2004.

    My question is at what point does the client record the rental home as a fixed asset and take depreciation? We have filed a 2004 tax return in which we are in the process of amending.

    Mortgage Broker

    My client is a mortgage broker who originates mortgages and then sells them. The company has registered to do business in about 30 states and we are trying to determine which states we need to file in. The company does not have agents or employees in any of these states. Should the following types of income be apportioned based on where the company's main office is located or where the underlying collateral is located: interest income (collected at settlement), origination fees, and investor fees from the sale of the mrotgage on the secondary market?

    Thanks for any assistance!

    Jacqueline M. Reardon, CPA

    W-4 Form

    My wife and I are newlyweds and are filling out our W-4 to change our marital status. We also own a home so we have a few deductions here and there, but we both work and computed we need additional tax withheld. On the W-4 form, you compute how much additional tax you need withheld from each paycheck, but nowhere can I find whether this withholding is needed from both our paychecks or just one of them since we are filing together. Right now we have $110 additional fed tax withheld from EACH of our paychecks and I am not sure if this is correct.

    Withholding can indeed be a mystery. On the W-4 it almost implies that all adjustments should be made to the highest paying job and the lower paying job(s) left at zero allowances. Try the IRS's online withholding calculator at,,id=96196,00.html . You enter a bunch of data and it gives you back a personalized answer. I'd be interested in hearing back how well it works for you. And don't forget your state's equivalent of the W-4, if any. - Rlw (Talk) 11:25, 2 Nov 2005 (CST)

    Small Business Owner

    Greetings, I'm trying to find Tax Law concerning "Per Diem" out of town expenses for Truck Drivers. Owner Operator expenses typically written off by Truck Drivers. Can anyone share with me any resources. Genuine Thanks James L Devor

    Simple IRA contribution

    Can an owner of a general partnership contribute as a salary reduction into a Simple if the Partnership shows a loss for the year.

    I have a client that has had a Simple IRA in existance for many years. They own a General partnership and contribute monthly from their draw into a Simple plan as well as match the 3% . The partnership is heading for a loss for 2005, do we have to withdraw the simple contributions? If so , by when? If not , where can I show the owners's CPA the supporting documents?

    Early Distributions from IRA

    I have a client who is suffering from a debilitating condition. She will be taking early distributions from her IRA. In order to avoid the 10% penalty on these distributions, what documentation must she obtain? From whom must she obtain it?

    Rikramer 14:13, 3 Nov 2005 (CST)Richard L. Kramer CPA

    A Schedule R statement or even a doctor's letter should suffice. Attach it to form 1040. Pub 590 says simply
    If you become disabled before you reach age 59½, any distributions from your traditional IRA because of your disability are not subject to the 10% additional tax.
    You are considered disabled if you can furnish proof that you cannot do any substantial gainful activity because of your physical or mental condition. A physician must determine that your condition can be expected to result in death or to be of long, continued, and indefinite duration.
    See the sample doctor's statement in the instructions for Schedule R. - Rlw (Talk) 19:01, 3 Nov 2005 (CST)

    Sec. 121 and 1031

    1. What is the new revenue procedure that deals with Sec. 121 and Sec. 1031? I heard that it allows the taxpayer(s) to defer the tax on the gain that exceeds the exclusion amount of $250,000(single) and $500,000(married).

    2. If there is such regulation and the taxpayer sells his house at a gain of, say, $300,000. The selling price was $600,000 and it was purchased for $300,000. It was converted to a rental property two years ago.

    In order to avoid the tax on $50,000 gain that exceeds $250,000 exclusion amount, does he need to purchase an investment real estate property that exceeds $600,000? Or property with lesser value since there was $250,000 exclusion?

    Extended Warranty on Business Vehicle

    I purchased and placed a 2005 Buick LaCrosse into my business on January 1, 2005. I also purchased $1,584 worth of extended warranty on this vehicle on October 26, 2005. How would you go about getting a write-off on the extended warranty assuming the vehicle is used 50% business? Neal

    Deductibility of parents' mortgage interest?

    Can a taxpayer deduct mortgage interest and property taxes that they paid on behalf of their parents?

    Allow me to use this as an example of how easy it is to find answers on the IRS web site.
    Go to the IRS web site. Type "mortgage interest deduction" into the "Search for..." box. Press the "Search" button. Scroll down a little and you will see some links to Publication 936, "Home Mortgage Interest Deduction". Follow the index link, which is identifiable as an "index.html" link; in this case, Start at the beginning, by clicking on Part I. Home Mortgage Interest. There you will find your answer, which is "You must be legally liable for the loan. You cannot deduct payments you make for someone else if you are not legally liable to make them."
    For the second question, go back to the "Search for..." box and enter "real estate tax deduction". Click "Search". Without going through all the details, you will eventually come upon Tax Topic 503 - Deductible Taxes. There you will find your answer, which is "To be deductible, the tax must be imposed on you and must have been paid during your tax year."
    Sorry to get so long-winded. The short answer to your question is "you can deduct the interest and property taxes only if you are legally responsible for them." That's the bad news. The good news is that virtually all such relatively simple questions are answered in plain English on the IRS web site. - Rlw (Talk) 14:34, 7 Nov 2005 (CST)

    Partnership Interest Exchange

    Can you still exchange 50% or more of a partnership interest for interest in a new partnership, thereby liquidating the old partnership at no gain to partners and acquiring a basis in the new partnership at FMV of assets exchanged [i.e. stepped up basis] and avoid gain in the new partnership? Also will the interest qualify if exchanged for interest in LLC that is taxed as a partnership? Rawcpa 17:31, 5 Nov 2005 (CST)


    What is my tax responsibility if my wife and I sold our principal residence after 1 year. After 1 unsuccessfull attempt at IVF (In-Vitro Fertalization)we tried again and we were well on our way to a baby, therefore we needed to buy a home that had room for the baby. So we made about $100,000 on the sale and transferred the gain to our new home (not via a 1031)

    What will be my tax due, more or less, is the $50,000 we spent on infertility treatments tax deductableFloridaFisherman 18:04, 5 Nov 2005 (CST) Thank you - Jesse

    Indian Employment Tax Law

    Are enterprise board member's stipends and mileage reimbursement subject to federal and state income tax and social security taxes as an employee?

    Inheritance Tax Help

    Here is my situation:

    I need to know the amount of "maximum estate tax marital deduction allowable in determining federal estate tax on my estate" from the following excerpt from my grandfather's will:

    ARTICLE FIVE: If my wife shall survive me for a period of six months (she did), I give to my trustee hereinafter named, in trust nevertheless, for the uses hereinafter set forth, free and clear of any estate, inheritance or succession taxes, that fractional share of my residuary estate (which shall be known as Part I of my residuary estate) which shall equal the maximum estate tax marital deduction allowable in determining federal estate tax on my estate, less the aggregate value for federal estate tax purposes of all interests in property...

    SUBSECTION A) There shall not be allocated to Part I of my residuary estate any asset or the proceeds of any asset which does not qualify for the marital deduction for federal estate tax purposes, or with respect to which credit for foreign death taxes may be allowable under the Internal Revenue Code of 1954 or such similar statutue as may be in effect at the time of my death.

    PARTICULARS: Date of will: 02/1971 Date of Death: 04/1976

    What does the IRS say about the maximum that could have been but into Trust before getting taxed?

    Annuity losses

    If a taxpayer sells or cashes in a variable annuity for a loss, is the loss deductible. If it is deductible, where does the loss get reported on the 1040 or related scedule?

    401k loan

    Can a participant continue to make contributions while a loan is outstanding?

    Charitable remainder unitrust early termination

    I have a client who established a charitable remainder unitrust 7-8 years ago, contributing $125,000 worth of shares of stock that were to be held in the trust until he died. During his lifetime, he was entitiled to 7% of the FMV of the stock each year, or the actual earnings, whichever was less. He claimed a deduction in the year of the contribution for about 20% of the FMV of the shares, based on the discounting calculation that was done by his tax attorney at the time. This year, he decided to go ahead and give the charity the stock outright, and release any further claim to the assets or any income from them. I believe he's entitled to a deduction this year, because the charity is getting the gift earlier than was expected at the time of the original gift, and because he has discontinued his annual draw of the earnings. Does anyone know how to calculate the deduction he's entitled to? I'd appreciate any guidance you could give me on this.

    Valerie37 16:07, 7 Nov 2005 (CST)

    Qdot trust

    If the value of a Qdot trust at inception is under $2,000,000 and at the end of the first year the value of the qdot is over $2,000,000 are you required at that time to post a bond or letter of credit with the IRS.

    Depreciation - Real Property

    A taxpayer (dentist) purchases a practice from another dentist. Included in the purchase price is the list of patients, and the medical building. Half of the building is owned by another dentist, who has been depreciating his share of the building for several years. Does my taxpayer begin at year one, or does he need to continue with the existing depreciation schedule?

    The new owner begins at year one using his depreciable cost (total paid for the bldg minus portion attributable to the land). Janie 10:50, 9 Nov 2005 (CST)

    Dissolve a foreign corporation in New York City

    Is there a counterpart to the New York State form CT-245 when a Foreign corporation that has never done business in New York State also needs a form for New York City? MRaiten 15:25, 8 Nov 2005 (CST)

    Limited partner loss deduction

    Can a limited partner treat his share of partnership losses as active if he actively participates as President and sole owner of an LLC that is the General Partner? Please see below:

        Facts:  Limited partnership about to be formed.  The LP has one general partner (an LLC and active participant) with a 1% share in profits, losses and capital.  There are 4 limited partners with equal 24.75% shares in profits, losses and capital.  All partners invest cash.  Limited partner #1 is an individual and also is the President and sole owner of the LLC.  The partnership will have losses.
        Conclusion and questions:  The LLC’s share of the loss will be an active loss.  Can LP partner #1’s loss be treated as active since he actively manages the LP thru the LLC?  If so, would that jeopardize his limited-liability status?

    Domestic Production Deduction

    Is this a deduction just for large corporations or can it be of help to a self-employed person, having 1 employee? I recently attended a tax school sponcered by the Il.University. This was one of the last items discussed and not much time was given to it. I have a several clients that have small businesses and have employees. One of them is a carpenter who does siding and home remodeling. I am wondering if his installation of these materials will quilify. Thank you

    Domestic Production Deduction

    Is this a deduction just for large corporations or can it be of help to a self-employed person, having 1 employee? I recently attended a tax school sponcered by the Il.University. This was one of the last items discussed and not much time was given to it. I have a several clients that have small businesses and have employees. One of them is a carpenter who does siding and home remodeling. I am wondering if his installation of these materials will quilify. Thank you Lkfordham 16:55, 8 Nov 2005 (CST)

    payment of long term care insurance premium by "s" corporation for more than 2% stockholder

    I have an s corporation client that pays for and includes in w-2 compensation health insurance premiums for a more than 2% stockholder. Can the corpration also pay for Long term care insurance premiums for the stockholder, deduct the premium on the corporate return and include the amount on the stockholder's w-2 as compensation? Thank you Kenneth Leavitt

    Simple IRA

    When do contributions have to be funded?

    state lottery

    suppose i won 10,000 in a state lottery but i also lost 3,000 betting on horse races; what would i report on my income tax return?

    Thanks Tarak

    Rental Income - Schedule E or Schedule C subject to S E Tax

    Client owns an auto repair shop which includes a building with built in lifts, oil changing bays, etc that he rents to a corporation. The question is since this is a not residentail real estate rental and the building can only be used as a repair shop because of all the integrated equipment,etc, would rental income from this be reported as such on Schedule E or as business income subject to self employment tax on a Schedule C?Primary 08:27, 9 Nov 2005 (CST)

    Repayment of prior years military pension

    Taxpayer received military pension for 5 years and now must repay amounts received. 1099s were issued each year and income was reported and taxed. Should amended returns be filed for past years, or can the repayment amounts be taken as a miscellaneous deduction (not subject to 2%)?--Mlvernon 11:53, 9 Nov 2005 (CST)

    Legal liability for mortgage debt

    I have a situation where mom and dad sold their home to their daughter, who obtained a new loan and mom and dad carried back a second trust deed. Daughter defaulted on first and home was in forclosue. Mom and dad stepped in and paid up all back interest owed, as well as other leins the daughter had accrued against title. Mom and dad then took title back from daughter. Mom and dad deducted the mortgage interest they had paid, even though they were not on title or on the first loan on the premis that they had an obligation as a second deed holder to protect their equity interest. The IRS has disallowed the deduction saying that they were not legally liable when they paid the mortgage interest. Is there any code or case law that indicates whether holding a second gives them a basis for being able to deduct the interest? WMarlis 15:54, 9 Nov 2005 (CST)

    1031 Exchange

    A taxpayer has 100% ownership in property he recieved in a like-kind exchange. When taxpayer dies the spouse inherits the property and receives the FMV as basis. When the spouse receives the FMV basis, does this eliminate the deferred gain that resulted from the like-kind exchange?

    S-E health insurance deduction for S corp SH

    This is often handled in different ways and, though very conservative, I do not take this deduction on page one unless the policy is in the corporation's name. I have read several different places that this is the correct way to handle it, yet just about everyone I have questioned either doesn't ask the SH or deducts it regardless. It's so confusing because for the policy to be 'in the corporation's name', I believe would necessitate a group policy, which is not always available for a sole shareholder and usually not viable. I'd love to get some feedback on how others are handling this. The tough part is, I formed my own S corp in 2004, have an individual policy, didn't need the deduction in 2004 due to first year loss, but sure hate to lose a $3,000 to $4,000 deduction by taking it on Schedule A.LJACPA 09:37, 11 November 2005 (CST)

    Qualified Proction Activities:

    Effective for tax years beginning December 31, 2004, taxpayers are permitted a deduction for income tax for 9 percent of the qualified production activities income - Code Section 199. What businesses fall under qualified production activities? Is a commercial printing press a qualified production activity business? And how about a restaurant - is preparing meals a production activity?Dsyadav 15:05, 11 November 2005 (CST)

    Form 1120-H

    I have question about 1120-H and Lacerte. Is this forum for this type of question?

    C Corporation Accrued Year-End Bonuses

    Two questions regarding a 9/30 year-end C Corporation accruing year-end bonuses: Two brothers each own 50% of the corporation. Can we accrue bonuses to the 2 officer/owners if they are paid within 2 1/2 months (12/15)? Can we accrue bonuses to other key non-owner employees and pay these amounts 8-9 months in the future (say 5/15/06)? Can anyone provide a citation for answers to either question?

    S Corporation to merge into new C corp

    Can this be done as a 351 or a 368 transaction, or even both, assuming only common stock is received by the former S corporation shareholders in the merger, and they receive, along with other property contributors to the newco, stock constituting control under 368 of the newco?

    Who can actually sign a payroll tax return?

    I do the payroll tax returns for our firm. I am not a CPA or enrolled agent, but I am a degreed accountant. I have been signing forms 941 for about 15 years, and was recently told by an IRS agent that I couldn't do that, even with a signed form 8821 -Tax Information Authorization from each client. The agent said that only someone with a formal Power of Attorney form (a 2848) could sign a 941. Since they recently changed this form to have it only accomodate CPA's and enrolled agents, I am stuck. Does anyone know- could my clients sign a form 8655 Reporting Agent Authorization for me so that I can continue to sign their payroll tax returns? As many of you know, payroll clients can be more helpless than most. If I give the forms to them to sign, many will not get filed timely, if at all.

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