1099-C Tax on Debt Forgiveness

Foreclosure SaleThe federal tax code taxes debt forgiveness.  The tax code also requires those forgiving debts to file information returns to the IRS, using form 1099-C. So, you lose your house in a foreclosure sale and the bank sends a 1099-C for the loss they take on the house.    Many taxpayers and tax preparers simply include the debt forgiveness in the taxpayers return as income.   However, there are many exceptions to taxation.  Some of the most common are:

  1. Gifts, bequests, devises and inheritances that forgive debts;
  2. Qualified Student Loan forgiveness plans;
  3. Cash basis taxpayers with debt that would qualify as a business deduction;
  4. Price reductions after a purchase;
  5. Required business debts;
  6. Bankruptcy discharged debts;
  7. Forgiveness when insolvent.

If you don’t file your return timely, the IRS may file a substitute for return for you.  When the IRS prepares a return they won’t know if an exception applies.  The IRS will  tax you on the full amount reported.  To address the matter you need to file a corrected return where the IRS substitute was filed.

If you don’t report the income on your return it will probably be audited.  The IRS auditors have been adding huge tax bills to peoples return on this issue.  You use form 982 to claim your exemption from tax for debt forgiveness.  The IRS auditor may reject the claim of exemption.  To get relief from the bill you may have to file an appeal.  The time for filing an appeal to Tax Court is very short.  The advantage of tax court is that you don’t have to pay the tax to sue for a refund.   If your return was prepared without considering your exemptions we could assist in amending your returns.   For help in addressing amended returns, tax audits and appeals, give us a call.

Anchorage Board of Equalization — Property Taxes

Jolly Roger of “Calico Jack” Rackham
Image in public domain

The annual right of passage for Anchorage property owners is the receipt in the mail of the Anchorage Board of Equalization green property appraisal card.  If you do not agree with the property value as assessed you may appeal the valuation.  You may appeal on the grounds that the appraisal is “unequal, excessive, improper or under evaluation.” Continue reading “Anchorage Board of Equalization — Property Taxes”

Federal Tax Liens

Understanding a Federal Tax Lien

A federal tax lien is the government’s legal claim against your property when you neglect or fail to pay a tax debt. The lien protects the government’s interest in all your property, including real estate, personal property and financial assets. A federal tax lien exists after the IRS:

  • Assesses your liability;
  • Sends you a bill that explains how much you owe (Notice and Demand for Payment); and
  • You neglect or refuse to fully pay the debt in time.

The IRS files a public document, the Notice of Federal Tax Lien, to alert creditors that the government has a legal right to your property.

How to Get Rid of a Lien

Paying your tax debt – in full – is the best way to get rid of a federal tax lien. The IRS releases your lien within 30 days after you have paid your tax debt.

Options: When conditions are in the best interest of both the government and the taxpayer, other options for reducing the impact of a lien exist.

  • Discharge of property — Allows property to be sold free of the lien. The seller or buyer can submit Publication 783, Instructions on How to Apply for Certificate of Discharge From Federal Tax Lien.
  • Subordination — Does not remove the lien, but allows other creditors to move ahead of the IRS, which may make it easier to get a loan or mortgage. For more information review Publication 784, Instructions on How to Apply for a Certificate of Subordination of Federal Tax Lien.
  • Withdrawal — Removes the public notice and assures that the IRS is not competing with other creditors for your property. If applying for a withdrawal, use Form 12277, Application for the Withdrawal of Filed Form 668(Y), Notice of Federal Tax Lien.

How a Lien Affects You

  • Assets — A lien attaches to all of your assets (such as property, securities, vehicles) and to future assets acquired during the duration of the lien.
  • Credit — Once the IRS files a Notice of Federal Tax Lien, it may limit your ability to get credit.
  • Business — The lien attaches to all business property and to all rights to business property, including accounts receivable.
  • Bankruptcy — If you file for bankruptcy, your tax debt, lien, and Notice of Federal Tax Lien may continue after the bankruptcy.

Avoid a Lien

You can avoid a federal tax lien by simply filing and paying all your taxes in full and on time. If you can’t file or pay on time, don’t ignore the letters or correspondence you get from the IRS. If you can’t pay the full amount you owe, payment options are available to help you settle your tax debt over time.

Lien vs. Levy

A lien is not a levy. A lien secures the government’s interest in your property when you don’t pay your tax debt. A levy actually takes the property to pay the tax debt. If you don’t pay or make arrangements to settle your tax debt, the IRS can levy, seize and sell any type of real or personal property that you own or have an interest in.

Clayton Walker

Alaska AHFC Energy Rebate should Not Be Taxable

Q. IS THE AHFC HOME ENERGY REBATE TAXABLE INCOME? I HEARD THAT I WILL RECEIVE A 1099 FORM FROM AHFC.   AHFC has received a legal opinion from the State of Alaska Department of Law that requires AHFC to issue a 1099-G to individuals who receive payments under this program. It is up to the recipient to contact their tax advisor about any possible tax consequences. – See more at: .  Indeed AHFC reports the amount in block 6 and reports the amount as a “taxable grant.”

The Internal Revenue Code provides for the exclusion from income of Energy conservation subsidies provided by public utilities under 26 USC § 136.

(a) Exclusion

Gross income shall not include the value of any subsidy provided (directly or indirectly) by a public utility to a customer for the purchase or installation of any energy conservation measure.
(b) Denial of double benefit
Notwithstanding any other provision of this subtitle, no deduction or credit shall be allowed for, or by reason of, any expenditure to the extent of the amount excluded under subsection (a) for any subsidy which was provided with respect to such expenditure. The adjusted basis of any property shall be reduced by the amount excluded under subsection (a) which was provided with respect to such property.
(c) Energy conservation measure
(1) In general
For purposes of this section, the term “energy conservation measure” means any installation or modification primarily designed to reduce consumption of electricity or natural gas or to improve the management of energy demand with respect to a dwelling unit.
2) Other definitions
For purposes of this subsection—

(A) Dwelling unit

The term “dwelling unit” has the meaning given such term by section 280A (f)(1).
(B) Public utility
The term “public utility” means a person engaged in the sale of electricity or natural gas to residential, commercial, or industrial customers for use by such customers. For purposes of the preceding sentence, the term “person” includes the Federal Government, a State or local government or any political subdivision thereof, or any instrumentality of any of the foregoing.
(d) Exception
This section shall not apply to any payment to or from a qualified cogeneration facility or qualifying small power production facility pursuant to section 210 of the Public Utility Regulatory Policy Act of 1978.
Other Precedent
There are no reported decisions as of the date of this post.  There are only three private letter rulings regarding the statute and its application.  The letter agreements can only be relied upon by the parties that obtained the letter rulings.  However, at least two of those letter rulings support the finding that Alaska Homeowners should not be paying tax on the AHFC energy rebates.  The other ruling appears to not be relevant.

Utility customers participating in test of “smart grid” technology utilizing new solar photovoltaic system to be installed in homes by taxpayer utility were not required to include value thereof in income per IRC § 61 because same was excludable as IRC § 136 “energy conservation measure;” nor was IRC § 6041 information reporting required. Private Letter Ruling 201046013, 2010 PLR LEXIS 2352.

As IRC § 136 did not apply to homeowner who received one-time renewable energy credit from utility upon installation of residential renewable energy system, homeowner was required to include gain from sale of associated environmental credits and benefits triggered by resulting electricity generation in income and to credit for 30% of expenditure. Private Letter Ruling 201035003, 2010 PLR LEXIS 1080.

Payments to residential customers by exempt entity to promote energy efficiency through state program were not income to recipients under I.R.C. § 61 but were energy conservation subsidies excluded under section 136; because payments were not income to customers, entity did not have to report payments under section 6041. Private Letter Ruling 200717010, 2007 PLR LEXIS 93.

It would be nice if AHFC would obtain a private letter ruling establishing that Alaska homeowners are not liable for taxes on the AHFC Energy rebate.  The cost of the letter agreement exceeds the benefit to any single homeowner.  But, AHFC would establish a lot of good will and keep more money in Alaska instead of shipping it off to DC.  Instead, they issue the 1099 and give you the following advice.  The IRS also provides advice here.  

The U.S. Treasury Department requires us to advise you that this written advice is not intended or written by our firm to be used, and cannot be used by any taxpayer, for the purpose of avoiding any penalties that may be imposed under the Internal Revenue Code. Written advice from our firm relating to Federal tax matters may not, without our express written consent, be used in promoting, marketing or recommending any entity, investment plan or arrangement to any taxpayer, other than the recipient of the written advice.

Interstate Income Tax Allocation for Corporations involved in Interstate Commerce

Uniform Division of Income Tax Purposes Act

In 1959 Alaska adopted the Uniform Division of Income for Tax Purposes Act (UDITPA).  The  National Conference of Commissioners on Uniform State Laws drafted UDITPA in 1957 to bring unify state tax codes with respect to the interstate income tax allocations for corporations involved in interstate commerce.

The Multistate Tax Compact

In 1970 Alaska adopted the Multistate Tax Compact (MTC). The MTC restated the UDITPA with some minor changes. Alaska codified the MTC  at AS 43.19.010. Per AS 43.19.010, article IV, section 9, the portion of a business’s total income apportioned to Alaska is determined by “multiplying the income by a fraction, the numerator of which is the property factor plus the payroll factor plus the sales factor, and the denominator of which is three.” The property factor is the fraction of the taxpayer’s total property and the property attributable to the taxpayer’s business in Alaska; similarly, the sales and payroll factors are fractions of the taxpayer’s respective total sales and payroll attributable to the taxpayer’s business in Alaska.

Allocation Formula for Interstate Income Tax Allocation

Alaska Statute 43.19.010, article IV, section 18 permits DOR to adjust a taxpayer’s tax burden if the statutorily mandated apportionment does not “fairly represent the extent of the taxpayer’s business activity in this state.” Subsection 18(a) allows DOR to apportion the taxpayer’s income based on separate accounting, while subsection 18(c) allows DOR to add “one or more additional factors” to the apportionment formula. The statute effectively requires that any remedy DOR enforces under section 18 be “reasonable.”

Alaska Statute 43.20.144 modifies AS 43.19.010’s apportionment scheme for all taxpayers “engaged in the production of oil or gas . . . in this state or engaged in the transportation of oil or gas by pipeline in this state.”10 Alaska Statute 43.20.144(c) provides three different apportionment formulas for such taxpayers, depending on the nature of the taxpayer’s oil or natural gas business in Alaska. Under AS 43.20.144(c)(1), a taxpayer that only transports oil or gas in Alaska is subject to a two-factor formula based on property and sales. Under AS 43.20.144(c)(2), a taxpayer that only produces oil or gas in Alaska is instead subject to a two-factor formula based on property and extraction. Finally, under AS 43.20.144(c)(3), a taxpayer that both transports and produces oil or gas in Alaska is subject to a three-factor formula based on property, sales, and extraction.

Constitutional Challenges to Interstate Income Tax Allocation

Under the Due Process and Interstate Commerce Clauses of the United States Constitution, a state “may not tax value earned outside its borders.” The central inquiry is “whether the state has given anything for which it can ask return.” But the United States Supreme Court has long recognized that taxing multi-state companies using strict geographic accounting fails to account for “the many subtle and largely unquantifiable transfers of value that take place among the components of a single enterprise.” The unitary business/formula apportionment method of taxation is meant to remedy this problem. Under this method, a taxing state first identifies the unitary business of which the taxpayer’s in-state activities are a part and then apportions the income of this unitary business to the taxing state according to a set formula.

In order for a business to be unitary, and thus amenable to formula apportionment, there must be flows of value between the parent and subsidiary. The United States Supreme Court has distinguished these flows of value from the mere passive flow of funds that arises from any parent- subsidiary relationship. Three “factors of profitability” indicate a unitary business:

  1. functional integration,
  2. centralization of management, and
  3. economies of scale.

Unitary Business Activities Supports Interstate Income Tax Allocation

  1. In Container Corp. of America v. Franchise Tax Board, the United States Supreme Court held a paperboard company to be unitary with its subsidiaries where the parent provided the subsidiaries with loans and loan guarantees, occasional assistance in obtaining equipment and fulfilling personnel needs, and general oversight and guidance. I
  2. In Alaska Gold Co. v. State, Department of Revenue, the Alaska Supreme upheld a finding of functional integration where the parent approved capital expenditures greater than $100,000, handled salaries and payroll for executives, and guaranteed the subsidiaries’ lease obligations.  
  3. In Earth Resources Co. of Alaska v. State, Department of Revenue, the Alaska Supreme Court upheld a unitary business finding where the parent provided the subsidiary with loans and loan guarantees, a uniform pay scale, salary guidelines, and a uniform retirement plan. In each of these cases the courts examined the same sorts of administrative and financial services.
  4. And in Tesoro Corporations and Subs v. State, Department of Revenue, The Alaska Supreme Court upheld a unitary business finding where the parent exercised almost complete control over the credit facilities, budgeting, cash management, project selection, personnel, uniform services in the fields of environmental compliance and safety, information services and technology, internal auditing, legal affairs, insurance, risk management, purchasing, and accounting.

 

 Selection of Taxation Regime Requires More Planning than Identifing a lower Rate

Just because the accountants can identify a better tax scheme in the code doesn’t mean that you can take advantage of the code.  In Tesoro’s case the company wanted both the economies of scale in management and it wanted to reduce the taxes by more favorable allocations.  Unfortunately the presence of unitary business activities precluded the independent activity allocations.  Accordingly, they now face penalties and interest from taxes outstanding for more than a decade.

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Alaska LLC Operating Agreements

Alaska LLC Operating Agreements

Partnerships have been around forever.  Corporations have been with us for 400 years. The American LLC was invented in Wyoming in 1977.  Alaska joined the fray more recently; however, they seem to have selected this entity as their entity of choice because the state makes it available for self filing online.  An Anchorage LLC lawyer helps point out some of the issues the State leaves out on their web site and why a visit with a lawyer can pay dividends later. Continue reading “Alaska LLC Operating Agreements”

Alaska Health Care Exchange Goes Live

So the Federal Government is shut down and Obama care marches on.  It’s not easy to figure out where to go to comply with the new act.  This article provides directions to where you need to go.

How does the Alaska Health Care Exchange Compare

Alaska had three choices to comply with the Affordable Health Care Act:

  1. Create their own exchange (18 states);
  2. Joint venture with the federal government (7 states); or,
  3. Let the Federal government set up the exchange (26 states including Alaska).

How do the Alaska costs Compare

There are so many variables that comparison for everyone is difficult.  However, the Government has prepared a report comparing the costs for 27 year olds across the 50 states.  Younger people generally have the lowest cost for health care because they are generally more healthy.  Accordingly, these rates may not show the rates they intend to charge for older citizens.

Where Do Alaskans Go to Sign Up for Affordable Health Care In Alaska

You go to https://www.healthcare.gov, more specifically you go to the Alaska page, here.

How do I sign Up?

Create an account: First give some personal information. Then choose a user name, password, and security questions for added protection.

Apply:  Starting October 1, 2013 you’ll enter your personal and your families personal information, including your income, household size, and more.  You can use this checklist to collect all the information they’ll want from you.  You’ll also need to collect the complete information about any employer plan that you are qualified for through another family member, found here

Pick a plan:  Next you’ll see all the plans and programs you’re eligible for and compare them side-by-side.  You’ll also find out if you can get lower costs on monthly premiums and out-of-pocket costs.

Enroll:  Choose a plan that you think you can afford and enroll.

So I Enrolled and I’m Sick Is the Doctor Visit Covered?

Your actual coverage starts no sooner than  January 1, 2014.  To get your coverage in place by January 1, 2014, you need to enroll no later than December 15, 2013.

What If I don’t Enroll?

Under the Affordable Care Act people must get  insurance coverage beginning in 2014 or face tax penalties called the Individual Mandate. This includes both yourself and your children who are legal US citizens.The fee in 2014 is 1% of your yearly income or $95 per person for the year, whichever is higher. The fee increases every year. In 2016 it is 2.5% of income or $695 per person, whichever is higher.In 2014 the fee for uninsured children is $47.50 per child.The most a family would have to pay in 2014 is $285.  Paying the Tax won’t give any health benefits. You still will be responsible for 100% of the cost of their medical care.

Can I Wait Until the End of 2014 to Get Coverage and Avoid the Individual Mandate.

No, you have to get your coverage before March 31, 2014.  The only exceptions are for qualifying life event.  A qualifying life event makes you eligible for a Special Enrollment Period to enroll in health coverage. Examples of qualifying life events are moving to a new state, certain changes in your income, and changes in your family size (such as, if you marry, divorce, or have a baby).  Life event planning may allow you to forego insurance early in the year and get coverage late in the year to avoid the tax.

It will be interesting to see how enrollments proceed over the next 180 days.  Will the uninsured embrace Obama Care?

IRA Beneficiary Designation Mistakes

August 17, 2013

IRA Beneficiary Designation Mistakes

Americans held over $18 Trillion in IRA and other retirement assets. Retirement assets are protected from judgment execution in most states and grow tax deferred or tax free.  Putting money in has been a very wise decision. You still need to address your beneficiary designation issues to keep from losing all that value. Continue reading “IRA Beneficiary Designation Mistakes”

I-9 Employment Information — Does It Really Have to Be Filled Out?

The Immigration and Customs Enforcement audited Ketchikan Drywall Services, Inc. (“KDS”) personnel records — the I-9 Employment Information form.  The ICE determined that  KDS violated the Immigration and Nationality Act.  ICE proved 225 of the 271 alleged violations of § 1324a(b) and the issued a bill for the resulting civil penalty of $173,250.00.  KDS argued that it substantially complied with the requirements of the statute.  KDS had copies of the employees documents containing the relevant information.   ICE refused to consider those documents.   The court upheld the penalties.  The court held that retaining copies of the underlying documents was neither necessary nor did it comply with the regulations.

Don’t skimp on filling out the I-9.

To discuss this issue or other business or legal matters call us at 907-375-9226.

 

UNITED STATES COURT OF APPEALS FOR THE NINTH CIRCUIT

KETCHIKAN DRYWALL SERVICES, INC.,

Petitioner,

v.

IMMIGRATION AND CUSTOMS ENFORCEMENT; OFFICE OF THE CHIEF ADMINISTRATIVE HEARING OFFICER,

Respondents.

No. 11-73105

OCAHO No. 10A00034

OPINION

On Petition for Review of an Order of the Office of the Chief Administrative Hearing Officer

Submitted April 8, 2013* Seattle, Washington

Filed August 6, 2013

Before: Dorothy W. Nelson, A. Wallace Tashima, and Consuelo M. Callahan, Circuit Judges.

Opinion by Judge Tashima

 

 

Anchorage Municipality Property Tax Valuation Appeals

CLAYTON WALKER, JD

JULY 20, 2013

Anchorage Municipality Property Tax Appeals
Campbell Creek Trail, Anchorage, Alaska
C. Walker 2013, all rights reserved.

Varilek
v.
Municipality of Anchorage,
BOARD OF EQUALIZATION
ALASKA SUPREME COURT
S-14448

No. 1464 – July 17, 2013

The Alaska Supreme Court issued another decision addressing Alaska municipal real property tax valuation appeal. The case doesn’t break new ground. However, it stands as a reminder of the the appellate process on municipal tax appeals and the standards of review used by the courts. The matter arose from the Anchorage Municipalities appraisal assessment in January 2010. You can expect that the full appeal process from filing through a Supreme Court opinion may take as long as 42 months as it did in this case. That fact, combined with the review standards addressed in the opinion make it clear that the boards opinion is likely to stand if it is based on based on substantial evidence applied on a reasonable basis involving the agency’s expertise. These facts underscore why engaging tax counsel is necessary. Counsel can advise you on the merits of your case. Counsel can assist in determining the valuation method used by the municipality in your matter. Counsel can assist in creating a strategic plan for accumulating and presentation of your evidence before the board. They can also keep you from spending 42 months pressing a legal theory that was repeatedly rejected.

For an appointment call
907-375-9226