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"A thumb goes up, a car goes by…" Tax extenders remain a top contender for "hitching a ride" on November’s must-pass government funding bill.

Wolters Kluwer recently sat down with Jennifer Acuña, Principal, Federal Legislative and Regulatory Services, KPMG LLP, in Washington, D.C. to discuss over 30 temporary tax provisions known as "tax extenders," which have expired or will soon expire spanning from 2017 to 2019. Before joining KPMG, Acuña served as chief tax counsel for the Senate Finance Committee (SFC), and was previously tax counsel for the House Ways and Means Committee.

New Tax Extenders Climate on Capitol Hill
"There is an interesting dynamic going on with tax extenders on Capitol Hill. In the past, extenders were viewed as a priority item, and that has changed," Acuña said.

Generally, tax extenders have been viewed on Capitol Hill as a consistently bipartisan annual or biannual year-end legislative initiative. However, the fate of tax extenders is more uncertain than it has been in the past – in part because it is not clear yet whether there will be an opportunity for any further tax legislation to become law this year, Acuña observed.

Funding Bill Likely Driver for Tax Package
Lawmakers are revving up negotiations as Congress races against this year’s dwindling legislative calendar to reach an agreement on fiscal year (FY) 2020 appropriations. Government funding is scheduled to expire on November 21.

Given the political climate on Capitol Hill and Congress’s limited time left on the legislative calendar, a stand-alone tax package is considered unlikely to make its way through both chambers successfully. That said, November’s "must-pass" government funding bill could be the legislative vehicle for dozens of expired or soon-to-be expired tax extenders, as well as for any other tax provisions that may crop up during lawmakers’ negotiations.

SFC Chair Chuck Grassley, R-Iowa, and ranking member Ron Wyden, D-Ore., introduced their bipartisan Tax Extenders and Disaster Relief bill (Sen. 617) earlier this year. Subsequently, House Ways and Means Committee Chairman Richard Neal, D-Mass., introduced his version of a similarly named tax extenders bill (HR 3301). However, Neal’s bill—which proposes undoing certain provisions related to estate taxes under 2017 tax reform as a "pay for"—was immediately deemed a nonstarter by Senate Republicans.

Notably, Acuña observed that House Democrats may be viewing their tax extenders bill as an opening offer, providing leverage for a larger tax policy negotiation. "In today’s climate it seems that some of the signaling that’s taking place is that House Democrats are trying to position tax extenders as a Republican priority to build up leverage for a larger tax policy negotiation," Acuña said. "Once you have a tax title on a big bill, there is no limit as to which tax provisions could actually be included in the bill," she added.

Larger Tax Package Could Emerge
In that vein, there has been talk among lawmakers that a larger, catch-all tax package could emerge from these negotiations. Any tax package that is unveiled in the coming weeks must have significant bipartisan support to make it to the president’s desk. That said, amidst the new climate surrounding tax extenders on Capitol Hill. several lawmakers have alluded that bipartisan negotiations could result in any number of tax provisions being added to the anticipated tax package, including technical corrections to the Tax Cuts and Jobs Act (TCJA) ( P.L. 115-97).

Staking Ground on Extenders
"Right now, what is happening is that parties are staking their ground," Acuña said. While Neal’s bill was largely seen on Capitol Hill as an opening bid to these negotiations, "no one opens with their best offer," Acuña said. However, "there is common ground with respect to tax extenders," she added.

Additionally, Acuña noted that these temporary tax provisions benefit a broad range of constituents. "They have been extended historically without fail for a reason. And it is because there has typically been general bipartisan support for extenders; there is a little bit of something for everyone" she said.

However, as for which tax extenders will be renewed this year, as well as retroactively or all together forgotten, Grassley recently indicated that all eligible provisions will likely make the cut. "I would expect that as of right now, if there is an extenders package there won’t be anything left out," Grassley told reporters.

When asked if Grassley was likely referring to all expired or soon-to-be expired tax incentives spanning from 2017 to 2019, Acuña told Wolters Kluwer "that would seem to be the case." While discussing the possibility of yet another temporary extension, Acuña noted that it is hard to make policy calls on a temporary tax extenders package.

"If you want a drama free negotiation on temporary extensions, it’s a clean date change. It is easier – you do not have a policy debate," she said. "If there is an opportunity for a tax title to be attached to a larger bill this year, it is infinitely harder to include changes that some Members of Congress will not like than it is to just do what has been done in the past and kick the can down the road by temporarily extending everything."

In looking ahead, deciding which temporary tax provisions get the axe is a policy call that is unlikely to be made this year and will not easily be done on a bipartisan basis, according to Acuña.

To Pay For or Not to Pay For
As for tax extenders’ cost, the issue of pay-fors has not generally been a longwinded discussion among lawmakers. "In the past, there have been very short-lived debates on whether to pay for them," Acuña said, adding that extenders generally have not been paid for. "It is hard to find a way to raise the kind of money needed to pay for a tax extenders bill that would be politically palatable for both sides of the aisle."

However, cost can be a leading issue when Congress creates these tax breaks on a temporary rather than permanent basis, Acuña explained. "In theory, everyone might agree that a tax incentive is excellent tax policy, but because of revenue constraints, Congress will not or cannot pay for it on a permanent basis—and that is usually where Congress lands in this temporary tax policy pickle."

Additionally, Acuna highlighted that many of the individual tax cuts under the TCJA were enacted temporarily through 2025 due to budgetary reasons. "A lot of the TCJA provisions gave life to new expiring provisions," Acuña noted. Likening the TCJA’s individual provisions to the long list of tax extenders currently awaiting possible renewal, Acuña noted that tax policy is not usually made temporary "because the members viewed the underlying tax policy as unsound but because of other constraints."

The End for Tax Extenders?
Many Republican and Democratic lawmakers’ have called for an end to tax extenders, citing to the annual year-end dash to renew temporary tax provisions as bad tax policy overall. Indeed, five taskforces comprised of bipartisan SFC members recently reviewed these tax extenders and largely agreed that temporary tax policy in general is less than ideal. While many House lawmakers on both sides of the aisle, in this Congress and those before it, have agreed that enacting permanent tax invectives is better policy than doing so temporarily, actually getting there remains a challenge, even if just procedurally.

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The IRS has issued a revenue procedure with a safe harbor that allows certain interests in rental real estate to be treated as a trade or business for purposes of the Code Sec. 199A qualified business income (QBI) deduction. The safe harbor is intended to lessen taxpayer uncertainty on whether a rental real estate interest qualifies as a trade or business for the QBI deduction, including the application of the aggregation rules in Reg. §1.199A-4.

QBI Deduction and Rental Real Estate
Under Code Sec. 199A, certain noncorporate taxpayers can deduct up to 20 percent of the taxpayer’s QBI from each of the taxpayer's qualified trades or businesses, including those operated through a partnership, S corporation, or sole proprietorship. Certain relevant passthrough entities (RPEs) (partnerships, S corporations, trust funds) calculate the deduction and pass it along to their owners or beneficiaries. A qualified trade or business is generally any trade or business under Code Sec. 162, but not a specified service trade or business (SSTB) or a trade or business of performing services as an employee.

Rental or licensing of tangible or intangible property (i.e., rental activity) that is not a Code Sec. 162 trade or business is still treated as a trade or business for the QBI deduction if the property is rented or licensed to a trade or business conducted by the individual or a RPE which is commonly controlled under Reg. §1.199A-4 ( Reg. §1.199A-1(b)(14)).

Earlier this year, the IRS released a proposed revenue procedure with a safe harbor for treating a rental real estate enterprise as a trade or business under Code Sec. 199A ( Notice 2019-7, I.R.B. 2019-9, 740). The IRS has issued the new revenue procedure after considering public comments on Notice 2019-7.

Rental Real Estate Enterprise
The new safe harbor applies to a "rental real estate enterprise." This is an interest in real property held for the production of rents, and may consist of an interest in a single property or interests in multiple properties. The taxpayer or RPE must hold each interest directly or through a disregarded entity, and may either:

treat each interest in similar property held for the production of rents as a separate rental real estate enterprise; or
treat interests in all similar properties held for the production of rents as a single rental real estate enterprise.

Properties are similar if they are part of the same rental real estate category: either residential or commercial. Commercial real estate held for the production of rents can only be part of the same enterprise with other commercial real estate. Residential properties can only be part of the same enterprise with other residential properties.

A taxpayer or RPE that treats interests in similar properties as a single rental real estate enterprise must continue to treat interests in all similar properties, including newly acquired properties, as a single rental real estate enterprise if it continues to rely on the safe harbor. However, a taxpayer or RPE that chooses to treat its interest in each residential or commercial property as a separate rental real estate enterprise can choose to treat its interests in all similar commercial or all similar residential properties as a single rental real estate enterprise in a future year.

An interest in mixed-use property—a single building that combines residential and commercial units—can be treated as a single rental real estate enterprise, or bifurcated into separate residential and commercial interests. A mixed-use property interest that is treated as a single rental real estate enterprise cannot be treated as part of the same enterprise as other residential, commercial, or mixed-use property.

Safe Harbor Requirements
The safe harbor determination must be made annually. For a rental real estate enterprise to qualify for the safe harbor, all of the following requirements must be met during the tax year:

Separate books and records are maintained to reflect income and expenses for each rental real estate enterprise. If an enterprise has more than one property, the requirement can be met if income and expense information statements for each property are maintained and then consolidated.
For rental real estate enterprises in existence for less than four years, 250 or more hours of rental services are performed per year. For rental real estate enterprises in existence for at least four years, 250 or more hours of rental services are performed per year in any three of the five consecutive tax years that end with the tax year.
The taxpayer maintains contemporaneous records (including time reports, logs, or similar documents) on the hours of all services performed, a description of all services performed, the dates when the services were performed, and who performed the services. For services performed by employees or independent contractors, the taxpayer may provide a description of the rental services, the amount of time generally spent performing the services, and the time, wage, or payment records for the employee or independent contractor. Records must be made available for inspection at the IRS's request. (The contemporaneous records requirement does not apply to tax years that begin before January 1, 2020.)
For each tax year for which it relies on the safe harbor, the taxpayer or RPE must attach a statement to a timely filed original return (or an amended return for the 2018 tax year only) that includes: (i) a description (including the address and rental category) of all rental real estate properties in each rental real estate enterprise; (ii) a description (including the address and rental category) of rental real estate properties acquired and disposed of during the tax year; and (iii) a representation that the requirements of Rev. Proc. 2019-38 have been satisfied.

"Rental services" include, but are not limited to:

advertising to rent or lease the real estate;
negotiating and executing leases;
verifying information contained in prospective tenant applications;
collecting rent;
daily operation, maintenance, and repair of the property, including purchasing materials and
supplies;
managing the real estate; and
supervising employees and independent contractors.

Rental services does not include:

financial or investment management activities, such as arranging financing;
procuring property;
studying and reviewing financial statements or reports on operations;
improving property under Reg. §1.263(a)-3(d); or
time spent traveling to and from the real estate.

If an enterprise fails to satisfy the safe harbor requirements, it can still be treated as a trade or business for the QBI deduction if it otherwise meets the trade or business definition in Reg. §1.199A-1(b)(14).

Property Excluded From Safe Harbor
The safe harbor does not apply to:

real estate used by the taxpayer (including an owner or beneficiary of an RPE) as a residence under Code Sec. 280A(d);
real estate rented or leased under a triple net lease, which includes a lease agreement that requires the tenant or lessee to pay taxes, fees, and insurance, and to pay for maintenance activities for a property in addition to rent and utilities;
real estate rented to a trade or business conducted by a taxpayer or an RPE that is commonly controlled under Reg. §1.199A-4(b)(1)(i); or
the entire rental real estate interest, if any portion of it is treated as an SSTB under Reg. §1.199A-5(c)(2).

Effective Date
The safe harbor applies to tax years ending after December 31, 2017. However, taxpayers and RPEs can rely on the prior safe harbor in Notice 2019-7 for the 2018 tax year.

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The IRS has released cryptocurrency guidance and frequently asked questions (FAQs) on virtual currency.

The IRS has released cryptocurrency guidance and frequently asked questions (FAQs) on virtual currency. Under the cryptocurrency guidance:

a taxpayer does not have gross income from a "hard fork" of the taxpayer's cryptocurrency if the taxpayer does not receive units of a new cryptocurrency; and
a taxpayer has ordinary income as a result of an "airdrop" of a new cryptocurrency following a hard fork if the taxpayer receives units of the new cryptocurrency.

The IRS has posted the FAQs on its website ( https://www.irs.gov/individuals/international-taxpayers/frequently-asked-questions-on-virtual-currency-transactions).

Virtual Currency and Cryptocurrency
Virtual currency is a digital representation of value that functions as a medium of exchange, a unit of account, and a store of value other than a representation of the U.S. dollar or a foreign currency.

Cryptocurrency is a type of virtual currency that uses cryptography to secure transactions that are digitally recorded on a distributed ledger, such as a blockchain. Distributed ledger technology uses independent digital systems to record, share, and synchronize transactions, the details of which are recorded in multiple places at the same time with no central data store or administration functionality.

Hard Forks and Air Drops
A hard fork occurs when a cryptocurrency on a distributed ledger undergoes a protocol change resulting in a permanent diversion from the legacy or existing distributed ledger. A hard fork may result in the creation of a new cryptocurrency on a new distributed ledger in addition to the legacy cryptocurrency on the legacy distributed ledger. Following a hard fork, transactions involving the new cryptocurrency are recorded on the new distributed ledger, and transactions involving the legacy cryptocurrency continue to be recorded on the legacy distributed ledger.

An airdrop is a means of distributing units of a cryptocurrency to the distributed ledger addresses of multiple taxpayers. A hard fork followed by an airdrop results in the distribution of units of the new cryptocurrency to addresses containing the legacy cryptocurrency. Note, however, that a hard fork is not always followed by an airdrop.

Cryptocurrency from an airdrop generally is received on the date and at the time it is recorded on the distributed ledger. However, a taxpayer may constructively receive cryptocurrency prior to the airdrop being recorded on the distributed ledger. A taxpayer does not have receipt of cryptocurrency when the airdrop is recorded on the distributed ledger if the taxpayer is not able to exercise dominion and control over the cryptocurrency.

Gross Income
If the taxpayer did not receive units of new cryptocurrency from a hard fork, the taxpayer does not have an accession to wealth and does not have gross income as a result of the hard fork.

If the taxpayer receives units of new cryptocurrency from an airdrop following a hard fork, the taxpayer received a new asset. Therefore, the taxpayer has an accession to wealth and has ordinary income in the year in which the taxpayer receives the new cryptocurrency. The taxpayer includes in gross income the fair market value of the cryptocurrency received. The taxpayer’s basis in the new cryptocurrency is the amount of income recognized.

Schedule 1, Form 1040 for 2019
A draft of the 2019 Form 1040, Schedule 1, "Additional Income and Adjustments to Income," includes a question which asks: "At any time during 2019, did you receive, sell, send, exchange or otherwise acquire any financial interest in any virtual currency?" If an individual has engaged in any virtual currency transaction in 2019, he or she must check the “Yes” box next to the question.

If the taxpayer has disposed of any virtual currency that was held as a capital asset, he or she must use Form 8949 to figure the capital gain or loss and report it on Schedule D (Form 1040 or Form 1040-SR). If the taxpayer has received any virtual currency as compensation for services, or disposed of any virtual currency that he or she held for sale to customers in a trade or business, the taxpayer must report the income as he or she would report other income of the same type.

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A district court has dismissed a lawsuit filed by four states’ against the federal government, ruling that the $10,000 state and local taxes (SALT) federal deduction cap is not unconstitutionally coercive.

In 2018, New York, Connecticut, Maryland, and New Jersey filed suit against the IRS and Treasury alleging that the SALT cap violates the federalism principles that undergird the U.S. Constitution. Judge J. Paul Oetken of the U.S. District Court for the Southern District of New York ruled on September 30 that the SALT cap is not an unconstitutional infringement of state power.

The states’ primary concern stemmed from the claim that the introduction of the SALT cap could impair each of the states’ ability to pursue its own preferred tax policies. However, the court noted that Congress lawfully enacted the SALT cap pursuant to its broad tax powers under Article I, section 8 and the Sixteenth Amendment, and that the cap, like any federal tax provision, will affect some taxpayers more than others and, by extension, will affect some states more than others. However, the cap, like every other feature of the federal tax code, is a part of the landscape of federal law with which states make their decisions as to how they will exercise their own sovereign tax powers, according to Oetken. Because the states failed to plausibly allege that the cap, more so than any other major federal initiative, meaningfully constrains this decision-making process, the district court had no basis for concluding that the SALT cap is unconstitutionally coercive.

Background
In 2017, President Trump signed into law sweeping tax reform legislation informally known as the Tax Cuts and Jobs Act (TCJA) ( P.L. 115-97), which made several substantial amendments to the federal tax code. Among other things, the TCJA placed an upper limit of $10,000 on the amount a taxpayer may deduct from their federal tax income to offset those sums they have paid toward certain state and local taxes (the "SALT cap"). As enacted, the SALT cap is scheduled to expire at the end of 2025.

Democrats on Capitol Hill Prepare to Move SALT Cap Repeal Bill
Meanwhile, Democratic lawmakers on Capitol Hill are preparing to move a SALT cap repeal bill when Congress returns from its two-week recess. Specifically, Rep. Bill Pascrell, D-N.J. has proposed repealing the SALT cap and raising the top income tax rate from 37 percent to 39.6 percent, where it previously sat. Additionally, Pascrell recently told reporters that House Democrats will likely propose a temporary repeal of the SALT cap as a "compromise."

At this time, however, any Democratic-backed measure to repeal or scale back the SALT cap is expected to fail in the Republican-controlled Senate.

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New final regulations that address the allocation of partnership liabilities for disguised sale purposes revert back to prior regulations. Under the final regulations:

a partner’s share of a recourse liability of the partnership equals the partner’s share of the liability under the rules of Code Sec. 752 and the related regulations; and
a partner’s share of a nonrecourse liability of the partnership is determined by applying the same percentage used to determine the partner’s share of the excess nonrecourse liability under Reg. §1.752-3(a)(3) ( Reg. §1.707-5(a)(2)).

Executive Order Triggers Reversion Back to Prior Disguised Sale Rules
In October 2016, the IRS issued final and temporary regulations (707 Temporary Regulations) under which a partnership would determine all partnership liabilities for disguised sales purposes—both recourse and nonrecourse—by applying the same percentage used to determine a partner’s share of excess nonrecourse liability under Reg. §1.752-3(a)(3) ( T.D. 9788).

In April 2017, the President issued Executive Order 13789 (E.O. 13789) on reducing tax regulatory burdens. In response, the IRS identified the final and temporary regulations in T.D. 9788 as implicating some of those regulatory burdens. In turn, in 2018 Proposed Regulations, the IRS proposed to withdraw the 707 Temporary Regulations and reinstate the regulations under Reg. §1.707-5(a)(2) described above. Now, the IRS has adopted the 2018 Proposed Regulations, thereby reinstating the Prior 707 rules.

Treasury and the IRS will continue to study the merits of the approach in the 707 Temporary Regulations and other approaches, including the final regulations, to determine which results in the most appropriate treatment of liabilities in the context of disguised sales.

Effective Dates
The final regulations apply to any transaction with respect to which all transfers occur on or after October 4, 2019, the date that the 707 Temporary Regulations expire. However, partnerships and their partners may apply the final regulations to any transaction where all transfers occur on or after January 3, 2017, the applicable date of the 707 Temporary Regulations.

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The IRS has released final regulation on the election to take a loss resulting from a federally declared disaster in the year preceding the disaster. The final regulations adopt proposed regulations substantially without change.

Disaster Defined
The regulations provide definitions of:

federally declared disaster;
federally declared disaster area;
disaster loss;
disaster year; and
preceding year.

Scope and Effect of Election
The election for a disaster loss attributable to a particular disaster applies to the entire loss sustained by the taxpayer from that disaster during the disaster year.

Making or Revoking Election
A taxpayer elects to deduct a disaster loss for the preceding year on:

an original federal income tax return for the preceding year; or
an amended federal income tax return for the preceding year.

The election is made in the manner specified by guidance issued pursuant to the regulations.

A taxpayer may not to take a disaster loss in the preceding year if the taxpayer claims a deduction (as a loss, as cost of goods sold, or otherwise) for the same loss for the disaster year.

If a taxpayer has claimed a deduction for a disaster loss for the disaster year and wants to elect the loss for the preceding year, the taxpayer must file an amended federal income tax return to remove the previously deducted loss on or before the date that the taxpayer makes the election for the preceding year loss.

If a taxpayer has claimed a deduction for a disaster loss for the preceding year and wants to revoke that election, the taxpayer must file an amended federal income tax return to remove the loss for the preceding year on or before the date the taxpayer files the federal income tax return or the amended federal income tax return for the disaster year that includes the loss.

Due Dates
The due date for making the election to deduct a disaster loss in the preceding year is six months after the due date for filing the taxpayer's federal income tax return for the disaster year (determined without regard to any extension of time to file).

Subject to the final regulation requirements, a taxpayer may revoke the election on or before the date that is 90 days after the due date for making the election.

Applicability Date
The final regulations apply to elections and revocations that are made on or after the date they are published in the Federal Register.

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Proposed regulations provide guidance on the potential tax consequences of replacing the London interbank offered rates (LIBORs) with a new reference rate in contracts and agreements.

On July 27, 2017, the U.K. Financial Conduct Authority announced that all currency and term variants of the LIBORs may be phased out after 2021. On March 5, 2018, the Alternative Reference Rates Committee (ARRC) established that the Secured Overnight Financing Rate (SOFR) would replace the LIBOR within the United States.

Tax Implications
Because the LIBORs are being phased out, existing debt instruments and derivatives must be amended. Parties will either amend debt instruments or contracts to replace references to the LIBOR with the SOFR (if in the United States). Alternatively, parties may alter debt instruments or contracts to replace the LIBOR-referencing fallback rate with another fallback rate upon the cessation of the LIBOR.

The ARRC has expressed several concerns to the IRS about the potential tax consequences associated with these contract amendments:

Modification of Terms of Debt and Non-Debt Instruments. Currently, there are no regulations under Code Sec. 1001 that address when a modification of a debt instrument, derivative, or other non-debt contract creates a realization event.
Transactions and Hedges. Amending the LIBOR-referencing debt instrument or hedge may cause a deemed termination of the hedge, which could lead to undesirable tax consequences.
Character of a One-Time Payment. Parties may need to agree to a one-time payment to address any differences between the LIBOR and the new rate, and it is unclear what the character of this payment would be.
Grandfathered Agreements. Certain debt and non-debt instruments that are exempt from specific laws due to their grandfathered status may lose that status if they are modified to reflect the elimination of the LIBOR.
OID and Qualified Floating Rates. The transition from the LIBOR to the SOFR (or other alternative rates) raises potential issues under the original issue discount (OID) rules.
REMICs. The modification of the terms of the regular interest rate in a real estate mortgage investment conduit (REMIC) to deal with the elimination of the LIBOR could preclude the interest from being a regular interest.
Interest in Foreign Corporations. The elimination of the LIBOR could prevent a foreign bank from taking advantage of the election under Reg. §1.882-5(d)(5)(ii)(B).

Modification of Debt Instruments, Non-Debt Contracts
Under Proposed Reg. §1.1001-6(a), if the terms of a debt instrument or non-debt contract are modified to replace, or to provide a fallback to, an LIBOR-referencing rate and the modification does not change the fair market value, there is no gain or loss under Code Sec. 1001. These rules apply regardless of whether the modification occurs by an amendment to the terms of the instrument or agreement or by replacing the existing debt instrument or contract with a new one.

Furthermore, altering the debt instrument’s terms to replace the LIBOR with a qualified rate is not treated as a modification and does not result in a deemed exchange of the debt instrument under Reg. §1001-3. Likewise, an alteration to a debt instrument’s terms to include a qualified rate (see below) as a fallback to an LIBOR referencing rate is not treated as a modification and therefore does not result in an exchange of the debt instrument for purposes of Reg. §1.1001-3.

Qualified Rate
Proposed Reg. §1.1001-6(b) provides the rules for determining whether a rate is a qualified rate. To be a qualified rate, Proposed Reg. §1.1001-6(b)(2)(i) requires that the fair market value of the debt instrument or non-debt contract after the modifications must be substantially equivalent to the fair market value before that alteration or modification. The proposed regulations provide that the fair market value of a debt instrument or derivative may be determined by any reasonable valuation method, as long as that method is applied consistently and takes into account any one-time payment made in lieu of a spread adjustment.

The proposed regulations provide two safe harbors to address the fair market value requirements. The debt instrument or non-debt contract are considered equivalent in value after the modification if:

at the time of the modification, the historic average of the LIBOR-referencing rate is within 25 basis points of the historic average of the rate that replaces it; or
the parties to the debt instrument or non-debt contract are not related and, through bona fide, arm’s length negotiations, determine that the fair market value of modified instrument or contract is substantially equivalent to the fair market value prior to the modification.

Transactions and Hedges
Proposed Reg. §1.1001-6(c) clarifies that a taxpayer can alter the terms of a debt instrument or modify one or more of the other components of an integrated or hedged transaction to replace a rate referencing an IBOR with a qualified rate without affecting the tax treatment of either the underlying transaction or the hedge. However, the integrated or hedged transaction as modified must continue to qualify for integration.

One-Time Payment
Under Proposed Reg. §1.1001-6(d), the source and character of a one-time payment that is made in connection with a modification described above will be the same as the source and character that would otherwise apply to a payment made by a payor with respect to the debt instrument or non-debt contract that is altered or modified.

Grandfathered Agreements
Because Proposed Reg. §1.1001-6(a) prevents debt instruments and non-debt contracts from being treated as reissued following a deemed exchange under Code Sec. 1001, the debt instrument or contract would not lose its grandfathered status as a result of any modifications made in connection with the elimination of an LIBOR.

OID and Qualified Floating Rate
Proposed Reg. §1.1275-2(m) stipulates three special rules for determining the amount and accrual of OID in the case of a variable rate debt instrument that provides both for interest at an LIBOR-referencing qualified floating rate and for a fallback rate that is triggered when the LIBOR becomes unavailable or unreliable.

The LIBOR-referencing qualified floating rate and the fallback rate are treated as a single qualified floating rate for purposes of Reg. §1.1275-5.
The possibility that the relevant LIBOR will become unavailable or unreliable is treated as a remote contingency for purposes of Reg. §1.1275-2(h).
Occurrence of the event that triggers activation of the fallback rate is not treated as a change in circumstances.

REMIC Interests
Proposed Reg. §1.860G-1(e) permits an interest in a REMIC to retain its status as a regular interest despite certain alterations and contingencies.

Foreign Corporation Interests
The proposed regulations amend the election in Reg. §1.882-5(d)(5)(ii)(B) to allow a foreign corporation that is a bank to compute interest expense attributable to excess U.S.-connected liabilities using a yearly average SOFR in addition to the 30-day LIBOR. This amendment would allow the foreign corporation bank to make the election even after the LIBOR is phased out.

Applicability Date
The proposed regulations will apply to an alteration of the terms of a debt instrument or a modification to the terms of a non-debt contract that occurs on or after the date of publication of a Treasury Decision adopting those rules as final regulations in the Federal Register. A taxpayer may choose to apply the proposed regulations to alterations and modifications that occur before the regulations are finalized.

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When your business' bottom line is not as healthy as it should be, laying people off eventually may become your only option. However, before you cut people from your business, consider implementing these cost-cutting measures for a healthier bottom line and greater peace of mind.

Revisit your budget. Most budgets have some fat in them. Take a good look at your existing budget: are there some areas of excess that you may not have previously noticed? Evaluate viable alternatives for expenses that could result in cost savings. For example, check your printing costs. Are you photocopying something that should actually be printed? If you make many copies of a document, you are not only racking up charges in paper and labor, you are also adding to the wear and tear on the machine. Consider having local printers bid on a few of these jobs. You should be able to save money.

Get new bids on jobs. As easy as it is to stay with the same vendors year after year, this practice can be costly. One of the best suggestions to lower your overall costs is to collect invoices of everything purchased in the last year and separate the 20 percent that represent 80 percent of all purchases. Send those out for new bids and you may find you can cut your costs significantly.

Turn to your employees. Consider having them take responsibility for the costs associated with their positions. Ask them for suggestions on ways to cut costs. Most of them will be able to give you at least a few suggestions or point out some areas of waste. Once you have evaluated their suggestions, put the good ideas to work.

With a little work and a lot of persistence, you may be able to avoid the unpleasant task of laying off employees in a business downturn by simply tightening your business's belt. Please feel free to contact the office for additional suggestions and information.

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The benefits of owning a vacation home can go beyond rest and relaxation. Understanding the special rules related to the tax treatment of vacation homes can not only help you with your tax planning, but may also help you plan your vacation.

The benefits of owning a vacation home can go beyond rest and relaxation. Understanding the special rules related to the tax treatment of vacation homes cannot only help you with your tax planning, but may also help you plan your vacation.

For tax purposes, vacation homes are treated as either rental properties or personal residences. How your vacation home is treated depends on many factors, such as how often you use the home yourself, how often you rent it out and how long it sits vacant. Here are some general guidelines related to the tax treatment of vacation homes.

Treated as Rental Property

Your home will fall under the tax rules for rental properties rather than for personal residences if you rent it out for more than 14 days a year, and if your personal use doesn't exceed (1) 14 days or (2) 10% of the rental days, whichever is greater.

Example - You rent your beach cottage for 240 days and vacation 23 days. Your home will be treated as a rental property. If you had vacationed for 1 more day (for a total of 24 days), though, your home would be back under the personal residence rules.

Income: Generally, rental income should be fully included in gross income. However, there is an exception. If the property qualifies as a residence and is rented for fewer than 15 days during the year, the rental income does not need to be included in your gross income.

Expenses: Interest, property taxes and operating expenses should all be allocated based on the total number of days the house was used. The taxes and interest allocated to personal use are not deductible as a direct offset against rental income. In the example above, the total number of days used is 263, so the split would be 23/263 for personal use and 240/263 for rental.

Any net loss generated will be subject to the passive activity loss rules. In general, passive losses are deductible only to the extent of passive income from other sources (such as rental properties that produce income) but if your modified adjusted gross income falls below a certain amount, you may write off up to $25,000 of passive-rental real estate losses if you "actively participate". "Active participation" can be achieved by simply making the day-to-day property management decisions. Unused passive losses may be carried over to future years

Planning Note: If your personal use does exceed the greater of (1) 14 days, or (2) 10% of rental days, the special vacation home rules apply. This means you drop back into the personal residence treatment, which allows you to deduct the interest and taxes and usually wipe out your rental income with deductible operating expenses. This is explained in greater detail below.

Treated as Personal Residence

If you use your vacation home for both rental and a significant amount of personal purposes, you generally must divide your total expenses between the rental use and the personal use based on the number of days used for each purpose. Remember that personal use includes use by family members and others paying less than market rental rates. Days you spend working substantially full time repairing and maintaining your property are not counted as personal use days, even if family members use the property for recreational purposes on those days.

Rented 15 days or more. If you rent out your home more than 14 days a year and have personal use of more than (1) 14 days or (2) 10% of the rental days, whichever is greater, your home will be treated as a personal residence.

Income: You must include all of your rental receipts in your gross income. Again, however, if the property qualifies as a residence and is rented for fewer than 15 days, the rental income does not need to be included in your gross income.

Expenses:

Interest and Taxes: Mortgage interest and property taxes must be allocated between rental and personal use. Personal use for this allocation includes days the home was left vacant.

Example: You rent your mountain cabin for 4 months, have personal use for 3 months, and it sits empty for 5 months. The amount of interest and taxes allocated to rental use would be 33% (4 months/12 months) and since vacant time is considered personal use, you would allocate 67% (8 months/12 months) to personal use. The rental portion of interest and taxes would be included on Schedule E and the personal part would be claimed as itemized deductions on Schedule A.

Operating Expenses: Rental income should first be reduced by the interest and tax expenses allocated to the rental portion (33% in our example above). After that allocation is made, you can deduct a percentage of operating expenses (maintenance, utilities, association fees, insurance and depreciation) to the extent of any rental income remaining. When calculating the allocation percentage for operating expenses, vacancy days are not included. Any disallowed rental expenses are carried forward to future years.

Planning Note: It would be wise to try to balance rental and personal use so that rental income is "zeroed" out since, even though losses may be carried forward, they still risk going used. Mortgage interest should be fully deductible on Schedule A as a second residence. If more than two homes are owned, choose the vacation home with the biggest loan as the second residence. Property taxes are always deductible no matter how many homes are owned.

Rented fewer than 15 days. If you have the opportunity to rent your home out for a short period of time (< 15 days), you will not have to worry about the tax consequences. This rental period is "ignored" for tax purposes and the house would be treated purely like a personal residence with no tricky allocation methods required.

Income: You do not include any of the rental income in gross income.

Expenses: Interest and taxes are claimed on Schedule A. You can not write off any operating expenses (maintenance, utilities, etc...) attributable to the rental period.

Planning Note: Take advantage of this "tax-free" income if you get the chance. Short-term rentals during major events (such as the Olympics) can be a windfall.

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Limited liability companies (LLCs) remain one of the most popular choice of business forms in the U.S. today. This form of business entity is a hybrid that features the best characteristics of other forms of business entities, making it a good choice for both new and existing businesses and their owners.

An LLC is a legal entity existing separately from its owners that has certain characteristics of both a corporation (limited liability) and a partnership (pass-through taxation). An LLC is created when articles of organization (or the equivalent under each state rules) are filed with the proper state authority, and all fees are paid. An operating agreement detailing the terms agreed to by the members usually accompanies the articles of organization.

Choosing the LLC as a Business Entity

Choosing the form of business entity for a new company is one of the first decisions that a new business owner will have to make. Here's how LLCs compare to other forms of entities:

C Corporation: Both C corporations and LLCs share the favorable limited liability feature and lack of restrictions on number of shareholders. Unlike LLCs, C corporations are subject to double taxation for federal tax purposes - once at the corporate level and the again at the shareholder level. C corporations do not have the ability to make special allocations amongst the shareholders like LLCs.

S Corporation: Both S corporations and LLCs permit pass-through taxation. However, unlike an S corporation, an LLC is not limited to the number or kind of members it can have, potentially giving it greater access to capital. LLCs are also not restricted to a single class of stock, resulting in greater flexibility in the allocation of gains, losses, deductions and credits. And for estate planning purposes, LLCs are a much more flexible tool than S corporations

Partnership: Partnerships, like LLCs, are "pass-through" entities that avoid double taxation. The greatest difference between a partnership and an LLC is that members of LLCs can participate in management without being subject to personal liability, unlike general partners in a partnership.

Sole Proprietorship: Companies that operate as sole proprietors report their income and expenses on Schedule C of Form 1040. Unlike LLCs, sole proprietors' personal liability is unlimited and ownership is limited to one owner. And while generally all of the earnings of a sole proprietorship are subject to self-employment taxes, some LLC members may avoid self-employment taxes under certain circumstances

Tax Consequences of Conversion to an LLC

In most cases, changing your company's form of business to an LLC will be a tax-free transaction. However, there are a few cases where careful consideration of the tax consequences should be analyzed prior to conversion. Here are some general guidelines regarding the tax effects of converting an existing entity to an LLC:

C Corporation to an LLC: Unfortunately, this transaction most likely will be considered a liquidation of the corporation and the formation of a new LLC for federal tax purposes. This type of conversion can result in major tax consequences for the corporation as well as the shareholders and should be considered very carefully.

S Corporation to an LLC: If the corporation was never a C corporation, or wasn't a C corporation within the last 10 years, in most cases, this conversion should be tax-free at the corporate level. However, the tax consequences of such a conversion may be different for the S corporation's shareholders. Since the S corporation is a flow-through entity, and has only one level of tax at the shareholder level, any gain incurred at the corporate level passes through to the shareholders. If, at the time of conversion, the fair market value of the S corporation's assets exceeds their tax basis, the corporation's shareholders may be liable for individual income taxes. Thus, any gain incurred at the corporate level from the appreciation of assets passes through to the S corporation's shareholders when the S corporation transfers assets to the LLC.

Partnership to LLC: This conversion should be tax-free and the new LLC would be treated as a continuation of the partnership.

Sole proprietorship to an LLC: This conversion is another example of a tax-free conversion to an LLC.

While considering the potential tax consequences of conversion is important, keep in mind how your change in entity will also affect the non-tax elements of your business operations. How will a conversion to an LLC effect existing agreements with suppliers, creditors, and financial institutions?

Taxation of LLCs and "Check-the-Box" Regulations

Before federal "check-the-box" regulations were enacted at the end of 1996, it wasn't easy for LLCs to be classified as a partnership for tax purposes. However, the "check-the-box" regulations eliminated many of the difficulties of obtaining partnership tax treatment for an LLC. Under the check-the-box rules, most LLCs with two or more members would receive partnership status, thus avoiding taxation at the entity level as an "association taxed as a corporation."

If an LLC has more than 2 members, it will automatically be classified as a partnership for federal tax purposes. If the LLC has only one member, it will automatically be classified as a sole proprietor and would report all income and expenses on Form 1040, Schedule C. LLCs wishing to change the automatic classification must file Form 8832, Entity Classification Election.

Keep in mind that state tax laws related to LLCs may differ from federal tax laws and should be addressed when considering the LLC as the form of business entity for your business.

Since the information provided is general in nature and may not apply to your specific circumstances, please contact the office for more information or further clarification.

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Owning property (real or tangible) and leasing it to your business can give you very favorable tax results, not to mention good long-term benefits. There are some drawbacks, however, and you should consider all factors before structuring such an arrangement.

BENEFITS

Since you own the property personally, it is protected from the creditors of the Company should it be sued or run into financial difficulty.

Real estate leasing outside of the corporation will offer better tax and financial advantages compared to the rental of personal property such as equipment. These advantages can include the avoidance of corporate double tax on the appreciation of the real estate, along with estate planning advantages from the step up in basis if the property is owned by the individual or partnership.

Allows the individual taxpayer to remove earnings from the company without payment of employment taxes or increasing the possibility of unreasonable compensation issues.

DRAWBACKS

If you are a non-corporate lessor and leasing personal property (machinery, equipment, etc.), you will have to comply with special rules in order to claim the Sec. 179 expense deduction.

You need to charge a fair rental for your real estate or equipment. Inflated rental rates may be recharacterized as dividends if coming from a corporation.

Leasing property to your own C Corporation cannot generate passive income. Income will be reclassified as "active" while losses will remain "passive", removing the ability to use this transaction to offset other "passive" losses.

Proper planning and knowledge of the various tax issues is important when considering this type of arrangement. Feel free to contact us for a better understanding of how these situations would effect you before you proceed.

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As a service to our clients we are providing a list of the web sites for most major automoblie manufacturers.

Website Directory

AUTOMOTIVE MANUFATURERS:

ACURAhttp://www.acura.com AUDIhttp://www.audiiusa BMWhttp://www.bmwusa.com CADILLAChttp://www.cadillac.com CHEVROLEThttp://www.chevrolet.com CHRYSLERhttp://www.chryslercars.com DODGEhttp://www.4adodge.com FORDhttp://www.ford.com HONDAhttp://www.honda.com JAGUARhttp://www.jaguarcars.com JEEPhttp://www.jeep.com LAND ROVERhttp://www.landrover.com LEXUShttp://www.lexus.com MAZDAhttp://www.mazdausa.com MERCEDES-BENZhttp://www.mbusa.com NISSANhttp://www.nissan-usa.com OLDSMOBILEhttp://www.oldsmobile.com PANOZhttp://www.panozauto.com PONTIAChttp://www.pontiac.com PORSCHEhttp://www.porsce.com SAABhttp://www.saabusa.com SUBARUhttp://www.subaru.com TOYOTAhttp://www.toyota.com VOLKSWAGENhttp://www.vw.com VOLVOhttp://www.volvocars.com

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