Tax

From declining sales at local retail establishments to brick and mortar store closings, almost everyone would agree that the rise of Internet sales has transformed the retail landscape. One consequence of this uptick in online sales is lost revenues in states that collect sales (or use) tax.

According to the National Conference of State Legislatures, state revenues declined by $17.2 billion due to lost sales taxes in 2016 alone. As such, states, which derive as much as one-third of their revenues from sales and use taxes, are struggling to find ways to harness this lost revenue. At least two states, North Dakota and Colorado, have turned to the US Supreme Court for relief sparking other states to take action and establish legislation governing payment of sales and use tax.

“Remote Sellers” and the “Physical Presence” Test

Referred to as “remote sales” (e-commerce to most people) retail transactions include catalog and Internet sales where the seller has no “physical presence” in the state where consumers are purchasing the goods. In the early days of Internet sales, several US Supreme Court cases (culminating with Quill v. North Dakota, 1992) ruled that sales tax could not be collected where the seller did not have a physical presence (property or employees, for example). While states do require residents to report sales tax owed on purchases made online or in another state, it is rarely enforced, resulting in lost revenue.

More recently, however, a 2015 US Supreme Court opinion by Justice Anthony Kennedy in Direct Marketing Association v. Brohl, while a major victory for online retailers, suggested that it might be time for the Supreme Court to take another look at the physical presence test.

For legal buffs, here’s what the lawsuit entailed according to SCOTUSblog:

A lawsuit by a trade association of retailers, alleging that a Colorado law requiring retailers that do not collect sales or use taxes to notify any Colorado customer of the state’s tax requirement and to report tax-related information to those customers and the Colorado Department of Revenue violates the federal and state constitutions, is not barred by the Tax Injunction Act.

And here is the plain language version:

Colorado requires internet retailers like Amazon.com to send it reports about their customers in Colorado. Colorado wants to use those reports to force those customers to pay taxes when they buy online. The district court enjoined the statute, thinking it probably is unconstitutional. Without deciding whether the statute is valid, the Court said that the injunction can stand while the parties litigate about the statute itself.

State Legislative Updates

At the state level, in the years since the Brohl opinion was issued, states have enacted or are planning to enact various regulations governing payment of sales and use tax. Several are already in place (or will be soon) and a few are proposed and/or facing court challenges. These states include Alabama, Indiana, Louisiana, Maine, Massachusetts, North Dakota, Ohio, Pennsylvania, South Dakota, Tennessee, Vermont, Washington, and Wyoming.

Federal Initiatives

Efforts to require online retailers to collect sales taxes at the federal level have stalled despite approval on both sides of the aisle but at least two new pieces of legislation have been introduced: The Marketplace Fairness Act of 2017 and the No Regulation Without Representation Act of 2017, which attempts to codify what states may and may not define as “physical presence.”

The Marketplace Fairness Act grants states the authority to compel online and catalog retailers (“remote sellers”), no matter where they are located, to collect sales tax at the time of a transaction–exactly like local retailers are already required to do. However, States are only granted this authority after they have simplified their sales tax laws in one of two ways:

A state can join the twenty-four states that have already voluntarily adopted the simplification measures of the Streamlined Sales and Use Tax Agreement (SSUTA). Alternatively, states can meet essentially five simplification mandates listed in the bill.

Amazon and other Online Retailers

To further complicate matters, as online retail giants such as Amazon expand warehouse and operational facilities to other states, they are faced with state sales tax collection requirements because they now meet the physical test. In the “good old days” anyone could order online and escape paying state sales tax. Those days are almost over, however.

For example, starting April 1, 2017, Amazon began collecting sales taxes in Hawaii, Idaho, Maine and New Mexico. While they operate in five additional states, four of them–Delaware, Montana, New Hampshire and Oregon–do not have sales tax and the fifth, Alaska, has municipal sales taxes but not statewide sales tax. Currently, items sold by Amazon.com LLC, or its subsidiaries, and shipped to destinations are subject to tax in 46 states.

State and Local Sales Taxes are Complicated

If you’re an online retailer with questions about sales tax or are simply wondering whether you should collect sales tax from customers or not–given that legislation could either be rejected by the courts or upheld, don’t hesitate to call the office today and speak to a tax and accounting professional you can trust.

• By Leon Clinton
• September 14, 2017

More than half of Millennials and Gen Xers have already or are planning to, withdraw money from their retirement plans to cover unexpected expenses such as medical bills, educational expenses, or buying a house, according to a recent PwC Employee Financial Wellness Survey (April 2017). Most notably, the survey also found that this trend is on the rise for both Millennials and Gen Xers, increasing 14 and 6 percent, respectively, from 2016 to 2017.

Background

When retirement plans such as the 401(k) were introduced, company pensions were still the norm and this “new” retirement savings vehicle was meant to be a supplement to the pension. Fast forward to today, however, and the retirement landscape has changed dramatically. Very few companies offer pensions anymore and most people rely entirely on whatever savings they’ve accumulated in their retirement account, along with social security) to get them through their golden years. In fact, for many people, retirement accounts are their most significant source of savings.

Because retirement plans such as the 401(k), tax-sheltered annuity plans under section 403(b) for employees of public schools or tax-exempt organizations, and Individual Retirement Accounts (IRAs) were created to help you save money for your retirement years, withdrawals before retirement age (59 1/2) are discouraged. As such, the IRS imposes a penalty of 10 percent for early withdrawals taken from qualified retirement plans before age 59 1/2.

Minimizing Early Withdrawal Penalties

While you should always think carefully about taking money out of your retirement plan before you’ve reached retirement age, there may be times when you need access to those funds. The downside is that you’ll be faced with an IRS penalty on the withdrawal unless you meet one of the exceptions listed below.

For instance, if you withdraw cash from your IRA to pay off credit card debt you will be liable for the 10 percent penalty when you file your tax return. Furthermore, that money is also considered taxable income by the IRS. In other words, you don’t want to get into the habit of treating your retirement fund like a cash cow but instead, should focus on building cash reserves in an emergency fund.

That being said, if an early withdrawal is unavoidable because you are suddenly unemployed, disabled, or have outstanding medical expenses, IRS provisions allow a number of exceptions that may be used to minimize or avoid the tax penalty.

1. Beneficiary of a deceased IRA owner. If you are the beneficiary of a deceased IRA owner, you do not have to pay the 10 percent penalty on distributions taken before age 59 1/2 unless you inherit a traditional IRA from your deceased spouse and elect to treat it as your own. In this case, any distribution you later receive before you reach age 59 1/2 may be subject to the 10 percent additional tax.
2. Totally and permanently disabled. Distributions made because you are totally and permanently disabled are exempt from the early withdrawal penalty. 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.
3. Distributions for qualified higher education expenses.Distributions for qualified higher education expenses are also exempt, provided they are not paid through tax-free distributions from a Coverdell education savings account, scholarships and fellowships, Pell grants, employer-provided educational assistance, and Veterans’ educational assistance. Qualified higher education expenses include tuition, fees, books, supplies, and equipment required for the enrollment or attendance of a student at an eligible educational institution, as well as expenses incurred by special needs students in connection with their enrollment or attendance. If the individual is at least a half-time student, room and board are qualified higher education expenses. This exception applies to expenses incurred by you, your spouse, children and grandchildren.
4. Distributions due to an IRS levy of the qualified plan. This exception applies if the IRS takes money directly out of your 401(k) plan to satisfy an IRS levy (tax debt).
5. Distributions that are not more than the cost of your medical insurance. Even if you are under age 59 1/2, you may not have to pay the 10 percent additional tax on distributions during the year that is not more than the amount you paid during the year for medical insurance for yourself, your spouse, and your dependents. You will not have to pay the tax on these amounts if all of the following conditions apply: you lost your job, you received unemployment compensation paid under any federal or state law for 12 consecutive weeks because you lost your job, you receive the distributions during either the year you received the unemployment compensation or the following year, you receive the distributions no later than 60 days after you have been reemployed.
6. Distributions to qualified reservists. Generally, these are distributions made to individuals called to active duty after September 11, 2001, for a period greater than 179 days or for an indefinite period because you are a member of a reserve component such as the Army National Guard. Distributions taken during the active duty period are not subject to the 10 percent penalty.
7. Distributions in the form of an annuity. You can take the money as part of a series of substantially equal periodic payments over your estimated lifespan or the joint lives of you and your designated beneficiary. These payments must be made at least annually and payments are based on IRS life expectancy tables. If payments are from a qualified employee plan, they must begin after you have left the job. The payments must be made at least once each year until age 59 1/2, or for five years, whichever period is longer.
8. Medical expenses. If you have out-of-pocket medical expenses that exceed 10 percent of your adjusted gross income, you can withdraw funds from a retirement account to pay those expenses without paying a penalty.
   

   Example: If you had an adjusted gross income of $100,000 for tax year 2017 and medical expenses of $12,500, you could withdraw as much as $2,500 from your pension or IRA without incurring the 10 percent penalty tax. You do not have to itemize your deductions to take advantage of this exception.

9. Buy, build, or rebuild a first home. An IRA distribution used to buy, build, or rebuild a first home also escapes the penalty; however, you need to understand the government’s definition of a “first time” home buyer. In this case, it’s defined as someone who hasn’t owned a home for the last two years prior to the date of the new acquisition. You could have owned five prior houses, but if you haven’t owned one in at least two years, you qualify.

   The first-time homeowner can be yourself, your spouse, your or your spouse’s child or grandchild, parent or another relative. The “date of acquisition” is the day you sign the contract for the purchase of an existing house or the day construction of your new principal residence begins. The amount withdrawn for the purchase of a home must be used within 120 days of withdrawal and the maximum lifetime withdrawal exemption is $10,000. If both you and your spouse are first-time home buyers, each of you can receive distributions up to $10,000 for a first home without having to pay the 10 percent penalty.

Questions about Early Withdrawals?

Before withdrawing funds from a retirement account please call the office and speak to a tax professional. While you may be able to minimize or avoid the 10 percent penalty tax using one of the exceptions listed above, remember that you are still liable for any regular income tax that’s owed on the funds that you’ve withdrawn–and you may be liable for more tax than you realize when you file your tax return next spring.

• By Leon Clinton
• September 12, 2017

Of all the retirement plans available to small business owners, the SIMPLE IRA plan (Savings Incentive Match PLan for Employees) is the easiest to set up and the least expensive to manage. The catch is that you’ll need to set it up by October 1st. Here’s what you need to know.

What is a SIMPLE IRA Plan?

SIMPLE IRA Plans are intended to encourage small business employers to offer retirement coverage to their employees. Self-employed business owners are able to contribute both as employee and employer, with both contributions made from self-employment earnings. In addition, if living expenses are covered by your day job (or your spouse’s job), you would be free to put all of your sideline earnings, up to the ceiling, into SIMPLE IRA plan retirement investments.

How does a SIMPLE IRA Plan Work?

A SIMPLE IRA plan is easier to set up and operate than most other plans in that contributions go into an IRA you set up. Requirements for reporting to the IRS and other agencies are minimal as well. Your plan’s custodian, typically an investment institution, has the reporting duties and the process for figuring the deductible contribution is a bit easier than with other plans.

SIMPLE IRA plans calculate contributions in two steps:

1. Employee out-of-salary contribution
The limit on this “elective deferral” is $12,500 in 2017, after which it can rise further with the cost of living.

Catch-up. Owner-employees age 50 or older can make an additional $3,000 deductible “catch-up” contribution (for a total of $15,500) as an employee in 2017.

2. Employer “matching” contribution
The employer match equals a maximum of three percent of employee’s earnings.

Example An owner-employee age 50 or over in 2017 with self-employment earnings of $40,000 could contribute and deduct $12,500 as employee plus an additional $3,000 employee catch up contribution, plus a $1,200 (3 percent of $40,000) employer match, for a total of $16,700.

Are there any Downsides to SIMPLE IRA Plans?

Because investments are through an IRA you must work through a financial institution acting, which acts as the trustee or custodian. As such, you are not in direct control and will generally have fewer investment options than if you were your own trustee, as is the case with a 401(k).

You also cannot set up the SIMPLE IRA plan after the calendar year ends and still be able to take advantage of the tax benefits on that year’s tax return, as is allowed with Simplified Employee Pension Plans, or SEPs. Generally, to make a SIMPLE IRA plan effective for a year, it must be set up by October 1 of that year. A later date is allowed only when the business is started after October 1 and the SIMPLE IRA plan must be set up as soon as it is administratively feasible.

Furthermore, once self-employment earnings become significant however, other retirement plans may be more advantageous than a SIMPLE IRA retirement plan.

Example If you are under 50 with $50,000 of self-employment earnings in 2017, you could contribute $12,500 as employee to your SIMPLE IRA plan plus an additional 3 percent of $50,000 as an employer contribution, for a total of $14,000. In contrast, a 401(k) plan would allow a $31,000 contribution.With $100,000 of earnings, the total for a SIMPLE IRA Plan would be $15,500 and $43,500 for a 401(k).

If the SIMPLE IRA plan is set up for a sideline business and you’re already vested in a 401(k) in another business or as an employee the total amount you can put into the SIMPLE IRA plan and the 401(k) combined (in 2017) can’t be more than $18,000 or $23,500 if catch-up contributions are made to the 401(k) by someone age 50 or over. So, someone under age 50 who puts $9,000 in her 401(k) can’t put more than $9,000 in her SIMPLE IRA plan for 2017. The same limit applies if you have a SIMPLE IRA plan while also contributing as an employee to a 403(b) annuity (typically for government employees and teachers in public and private schools).

How to Get Started Setting up a SIMPLE IRA Plan

You can set up a SIMPLE IRA plan account on your own; however, most people turn to financial institutions. SIMPLE IRA Plans are offered by the same financial institutions that offer any other IRAs and 401(k) plans.

You can expect the institution to give you a plan document and an adoption agreement. In the adoption agreement, you will choose an “effective date,” which is the start date for payments out of salary or business earnings. Again, that date can’t be later than October 1 of the year you adopt the plan, except for a business formed after October 1.

Another key document is the Salary Reduction Agreement, which briefly describes how money goes into your SIMPLE IRA plan. You need such an agreement even if you pay yourself business profits rather than salary. Printed guidance on operating the SIMPLE IRA plan may also be provided. You will also be establishing a SIMPLE IRA plan account for yourself as participant.

Ready to Explore Retirement Plan Options for your Small Business?

SIMPLE IRA Plans are an excellent choice for home-based businesses and ideal for full-time employees or homemakers who make a modest income from a sideline business and work well for small business owners who don’t want to spend a lot of time and pay high administration fees associated with more complex retirement plans.

If you are a business owner interested in discussing retirement plan options for your small business, don’t hesitate to contact the office today.

• By Leon Clinton
• September 10, 2017