Taxing Situation
Take Steps Now to Reduce Your Tax Burden in 2015
Kristina Drzal-Houghton
Many business owners noted a sharp increase in their 2013 taxes compared to 2012. I noted a few instances where the taxable income had decreased but the tax liability increased. This article will explain why many business owners saw such a sharp increase in taxes and why using S corporations now provides business owners with a unique opportunity to minimize earnings subject to both the recently imposed additional tax on net investment income and increased employment taxes.
As the dust settles on the two major pieces of tax-reform legislation that went into effect in 2013, S corporations emerge as the entity of choice for many closely held businesses. Taking into account the impact of the two income-based Medicare taxes, the self-employment tax, and the rate differential between individual and corporate tax rates, businesses eligible to be treated as S corporations have opportunities to take advantage of unique provisions not applicable to other types of entities.
Increased Medicare Taxes
For 2013 and thereafter, the Medicare tax on compensation and self-employment income increased from 2.9% to 3.8%. The 0.9% increase applies to the extent an individual’s compensation or self-employment income exceeds the specified threshold amounts ($250,000 for married individuals filing jointly and $200,000 for single individuals).
The full brunt of the increase falls on the employee, or self-employed individual, with no change to the employer portion of the tax. There is no cap on the amount of compensation or self-employment income subject to the tax. Further, the threshold amounts for the Medicare tax are not indexed for inflation, so an increasing number of taxpayers will be subject to the tax as time passes. The combined effect of increased income and Medicare tax rates on earned income puts employees at a top rate of up to 39.25%, and self-employed individuals at a top rate of up to 40.7%.
New 3.8% Tax
The new 3.8% Medicare tax on net investment income (NII) functions as a corollary to the Medicare tax on earned income. Subject to limited exceptions, most income of an individual taxpayer is covered by one (but only one) of these taxes. Individuals are subject to the NII tax on the lesser of their NII or modified adjusted gross income over the specified threshold amounts.
There is no cap on the amount subject to the tax, and the thresholds are not indexed for inflation. An individual’s NII is the sum of the individual’s passive income (generally, all interest, dividends, annuities, rents, royalties, capital gains, and certain income from a trade or business) less applicable deductions. Trade or business income is included in NII if the business activity is a passive activity with respect to the taxpayer. NII does not include any item taken into account in determining self-employment income for the relevant tax year.
Individual Rate Now Tops Corporate Rate
For the first time since 2003, corporate and individual rates have flip-flopped, and the maximum income-tax rate applicable to individuals is now significantly higher than the rate applicable to corporations. The top individual income-tax rate for 2013 is 39.6% for ordinary income and 20% for long-term capital gains and qualified dividends. The top corporate income-tax rate for 2013 remains 35%, however, for both ordinary income and capital gains.
C corporations benefit from the relatively lower corporate income-tax rate, when compared to the top individual income-tax rate. However, this corporate-level advantage is generally outweighed by the increased tax burden at the shareholder level. The cost of withdrawing corporate earnings has substantially increased, with rising individual rates and the addition of the NII tax. Every dollar earned by a C corporation is subject to tax at 35% at the corporate level, and then again on distribution as a dividend to shareholders at the applicable individual income-tax rate, with the addition of the 3.8% NII tax for high-income shareholders.
Less-obvious Tax Increases
In addition to higher individual income-tax rates, the phase-out of personal exemptions and disallowance of itemized deductions results in an even higher effective marginal tax rate for high-income taxpayers.
Beginning in 2013, an individual’s personal exemptions are partially phased out for adjusted gross income over the specified amount ($254,200 for 2014), and itemized deductions are disallowed in an amount equal to 3% of adjusted gross income over the specified amount, with the maximum amount disallowed equal to 80% of itemized deductions.
Disparity in Treatment of Different Entity Types
Entity owners must navigate the rules relating to the various taxes that are potentially applicable to their business income, whether in the form of dividends, salary, or sale proceeds. The application of these rules varies significantly with the choice of entity as discussed below.
C Corporations
For C-corporation shareholders, the NII tax applies to any dividends paid by the corporation and to any gain on the sale of the C-corporation stock. The level of a C-corporation shareholder’s participation in the corporation’s business is irrelevant for purposes of the NII tax. In contrast to partnerships, limited liability companies (LLCs), and S corporations, the NII tax applies to income from a C corporation regardless of whether the corporation’s business is active or passive with respect to any shareholder.
Partnerships and LLCs
The treatment of an owner of a partnership interest, including interests in an LLC taxed as a partnership, depends on whether the business is passive with respect to the owner for purposes of the NII tax rules, and whether the owner is treated as a ‘limited partner’ for purposes of the self-employment tax rules.
An individual partner’s NII includes the partner’s share of flow-through income from a partnership only to the extent that the income is derived from a partnership activity that is a passive activity with respect to the partner (or from trading in financial instruments or commodities), or represents a share of the partnership’s investment income. The material participation requires the partner’s involvement in the operation of the activity to be regular, continuous, and substantial, as well as more than 500 hours per year.
Thus, in the case of a passive partner, the new NII tax applies to the partner’s entire distributive share of partnership income. On the other hand, if a partner materially participates in the partnership’s business, the NII tax does not apply to the partner’s income from the partnership.
Unfortunately, even a partner whose level of participation avoids the NII tax will likely be subject to self-employment tax on the partner’s entire distributive share of the partnership’s income, as well as any gain on sale of a partnership interest.
S Corporations
Passive shareholders in an S corporation are treated much like passive investors in partnerships. The NII tax applies to the entire distributive share of S-corporation income allocable to a shareholder. As with partners, the material-participation test applies to determine whether an activity is passive with respect to an S-corporation shareholder.
A shareholder who materially participates in the business avoids the NII tax on the shareholder’s entire distributive share of the S-corporation’s income. Additionally, in most cases, the gain or loss on the sale of S-corporation shares is not included in NII.
A shareholder-employee of an S corporation is subject to employment taxes (including the Medicare tax on earned income at the new higher rate for 2013) on compensation for services that the shareholder provides to the S corporation. However, the self-employment tax does not apply to an S-corporation shareholder’s distributive share of the corporation’s income.
Conclusion
Bifurcating an S-corporation shareholder’s compensation for services from the shareholder’s distributive share of the corporation’s income provides an opportunity to minimize earnings subject to the additional layer of NII and employment taxes. The caveat is that reasonable salary must be paid.
With the increase in taxes on earned income, the IRS has added an incentive to challenge the allocation of S-corporation payments between salary and distributions. If the IRS determines that salary paid to an S-corporation shareholder is too low, a portion of distributions to the shareholder might be recharacterized as wages.
Kristina Drzal Houghton, CPA, MST is a partner with the Holyoke-based accounting firm Meyers Brothers Kalicka and director of the firm’s Taxation Division; [email protected]
