Posts Tagged ‘consulting contract’

Irv Didn’t Invent Taxes, Just 227 Ways To Beat Them

Saturday, March 28th, 2009

There are three main ways the federal tax law picks your pocket and becomes your legal partner: payroll taxes, the income tax and the estate tax. So, how can you fight back?  Here are five areas in which you can save money from taxes.

Column from: Modern Machine Shop, Contributed by: Irving L. Blackman

Would you believe that the basic tax law, the Internal Revenue Code and regulations, is about 50,000 pages long with no logical, organized theme? There’s also a constant stream of Internal Revenue Service rulings and case law. No one person can know it all—not Congress, which passes the law, nor the IRS, which enforces it.

There are three main ways the federal tax law picks your pocket and becomes your legal partner: payroll taxes, the income tax and the estate tax. So, how can you fight back? One day, just for fun, we (four tax guys) started to count the ways to legally get around paying the three taxes listed. We were just getting warmed up when we counted 227 options and stopped. The following are five areas in which you can save money from taxes:

1. Payroll Taxes. This money-stealing parasite is persistent and expensive: This year, $16,404 on the first $106,800 of your earnings goes to the tax man. That’s a scandalous 9.76 percent. For earnings of more than $106,800, you pay an additional 2.9 percent.

Here are examples of the three most common ways to lose payroll taxes to the IRS: The first mistake involves Joe, the owner of an S corporation who taxes a large salary (often $500,000 or more) and takes a huge bonus at the year’s end to bring down profits. For this S corporation, a tax-free dividend instead of compensation would save a bundle of unnecessary payroll taxes and would cost no more in income taxes. A second payroll tax mistake is when owners’ wives and moms take a salary when they either don’t work or are overpaid. It is much better tax-wise to give them a gift. The third mistake is operating a business as an LLC, which makes all income to the owner(s) subject to payroll taxes.

2. Asset Protection. In a heartbeat, your family wealth, including your business, can be depleted or even destroyed by a lawsuit.

Keep your business thin by keeping only those assets—typically, necessary cash, inventory and receivables—needed for operations in your business. Here are some basic sub-strategies: Elect S corporation status; personally own (via separate LLCs) any new real estate or expensive equipment, and lease it to your operating company; and never own delivery vehicles in your operating company. Put the vehicles into a separate corporation or LLC.

The sad fact is, we can’t protect the assets inside of your operating company, but we can protect you and your spouse. All of your significant assets are simply retitled using typical lifetime planning documents—such as family limited partnerships, LLCs and appropriate trusts.

3. Life Insurance. You can save money in taxes whether you, your spouse or your kids own the insurance.

Critical issues concerning life insurance are premium cost, the death benefit and the tax due on the benefit at death (usually the estate tax). The following are common ways to modify insurance plans to save premiums or increase the death benefit without additional costs:

• For single life or second-to-die insurance, you can get a cash-surrender value of more than $200,000 on a policy that is 9 years old or older. This results in significantly more death benefit for the same premium cost or a significantly reduced premium cost for the same death benefit.

• If you, the husband, are at least 55 years old, worth more than $5 million and have insurance on your life only, you are wasting premium dollars. Second-to-die coverage with your wife will typically give you the same death benefit for about 35 percent less premium cost.

• If you have more than $400,000 in a qualified plan such as a 401(k) or IRA, that amount is subject to a double tax (income and estate) of as much as 73 percent to the IRS. On average, you can turn every $270,000 of after-tax dollars into $3 to $5 million (tax-free), depending on your age and health. This plan works for second-to-die or single life insurance.

4. Business Succession. This affects your business and your business kids. The typical business owner wants to transfer the business to his kid(s) so that he and his kid(s) don’t get killed by taxes. He also wants to treat his non-business kids fairly, ensure that he controls his business for as long as he lives and ensure that the company stock stays in the family by never going to a kid’s ex-spouse. Every one of these goals is easily accomplished. Best of all, the business can be transferred tax-free, with no income tax, gift tax or estate tax for the owner or the kids.

5. Estate Plan. A proper estate plan is actually two plans: a lifetime plan and a death plan. The plans are designed to cover every significant tax-saving possibility—from the minute the lifetime plan is created until after you get hit by the final bus (covered by the death plan).

Beyond the ‘C’: Use S corporation to buy or transfer a business.

Thursday, March 26th, 2009

A reader of this site — let’s call him Joe — asked his CPA to call me to get a second opinion.

Here’s the story the CPA told me:

Joe was about to buy the stock of a C corporation for $2.2 million payable over eight years plus interest at prime, all evidenced by a note. In addition, another $600,000 was to be paid by the C corporation to be divided between a covenant not to compete (for three years starting immediately) and a consulting contract (the CPA was not sure that the seller was really going to consult) to the seller for three years. The idea was to make the $600,000 deductible as paid.

Joe intended to get the money to pay the principal and interest on the $1.2 million note by taking a bonus twice a year when the note payments became due.

Fortunately, the CPA called before any papers were signed. Without getting into every nook and cranny of the proposed transaction, here is a list of the most obvious tax blunders that would have befallen Joe and his C corporation.

– The bonuses to Joe almost certainly would have been attacked by the IRS as unreasonable compensation (Joe intended to take $250,000 to $275,000 as regular compensation, plus the bonuses).

– The interest to be paid by Joe is considered investment interest, which is deductible only to offset investment income (Joe had none). In effect, all of that beautiful interest would have been nondeductible.

– An employee or consultant already has a duty not to compete. Paying the seller for consulting is OK (assuming the amount is reasonable). So if the seller actually worked and got reasonable compensation, it would be deductible. On the other hand, if the seller really did not consult, none of the consulting payments is deductible. In any event, the amount of the covenant is not deductible over the three-year payment or not-to-compete period; instead, it can be written off only over 15 years.

Again, without attempting to cover every detail, here is how the transaction will be done:

– Joe will elect S corporation status. Now Joe can take tax-free S corporation dividends to pay the note. The interest, because of the S corporation status, is now deductible on Joe’s personal tax return as a business expense. The unreasonable-compensation problem is eliminated.

– The interest rate will be raised to two points over prime and reduce the covenant amount dollar for dollar. The consulting contract will run for only the period of time that the seller actually consults, and that will be paid for same. After the consulting period is over, the covenant not to compete will kick in.

One warning: Whether you’re buying or selling a business, work only with experienced and knowledgeable professionals. Pretend you’re having a heart transplant, and seek out the best professional help you can find. If you are selling your S corporation to one of your kids, he or she can deduct the interest (see Letter Ruling 9215013).

An S corporation is almost always the best route when you are transferring — by sale or otherwise — your business to your kids.