Extensions Granted for Certain 2010 Estates

Under the Bush tax cuts that were enacted in 2001, no estate tax was to apply in 2010 and the income tax basis of inherited assets was to generally carryover from the decedent.  On December 17, 2010, Congress acted to extend the Bush tax cuts for two more years and also revamped the 2010 estate tax rules.  The estate tax was retroactively reinstated for 2010 at a 35% tax rate with a $5 million exemption and requiring the income tax basis of assets to be generally changed to their fair market values at the date of death.  In addition, Congress provided an election (for the 2010 tax year only) whereby estates could elect out of the reinstated 2010 estate tax regime and apply the rules of zero estate tax and carryover of income tax basis for inherited property that were originally going to apply for 2010.  The election may be beneficial for large estates.

Tax guidance and tax forms from the IRS have been slow in coming because of the complexity of these changes.  Now, in Notice 2011-76, the IRS has published guidance with respect to the due dates of the required tax forms and reporting obligations.

Estate Tax Return, Form 706:  The due date of estate tax returns of those who died from January 1, 2010 through December 16, 2010 was originally set to be September 19, 2011.  The form was provided less than two weeks ago.  Therefore, if extension Form 4768 is filed by September 19, 2011 for these estates, an extension to March 19, 2012 is permitted for both filing Form 706 and also for paying any estate tax.  However, interest will apply to the estate tax paid after September 19, 2011.  For those who died from December 17, 2010 through December 31, 2010, the regular due date and payment rules apply (nine months after death) unless extension Form 4768 is timely filed, in which case Form 706 and the payment of any tax is due 15 months from the date of death.  Interest will also apply to tax paid after the original nine-month due date, although the Notice waives late payment penalties.

Carryover Basis Return, Form 8939:  For those who died in 2010 and elect out of the reinstated estate tax, the due date of the tax return reporting carryover income tax basis of inherited assets (with adjustments for the special $1.3 million and $4.3 million basis increases) was due November 15, 2011.  The due date is now changed to January 17, 2012 and no extension request is necessary to obtain the later due date.  When carryover basis is elected, the Personal Representative of the estate is required to report the carryover basis information to the estate beneficiaries within 30 days of the due date of Form 8939.  Therefore, the due date for this requirement is also changed, from December 15, 2011 to February 16, 2012 (the Notice states the 17th).

Gains on the Sale of Inherited Assets with Carryover Basis:  Beneficiaries that sell inherited assets may not know the income tax basis of the asset sold by the due date of their 2010 income tax return (October 17, 2011 for extended individual income tax returns) because the due dates of the estate tax return and the carryover basis reporting form may be after the due date of the beneficiary's income tax return.  The beneficiary should make a good faith estimate of the income tax basis and file the income tax return on time.  When the actual basis information becomes available, an amended income tax return will be necessary to correct the basis.  The IRS notice states that underpayment penalties will be waived if a good faith estimate was used.  The amended return should bear the legend, "IR Notice 2011-76" at the top of the form.

The IRS notice does not change other due dates, such as the due date of the gift tax return (Form 709, which is due at the same time as the donor's income tax return) or the due dates of any State inheritance tax forms (Utah follows the Federal law).

IRS Tips for Recently Married Taxpayers

The IRS just published its list of seven tax tips for recently married taxpayers.  I thought it would be good to review these tips as many of our clients have children who are getting married.

1. Report any name change to the Social Security Administration so that your name and Social Security number will match when you file your tax return, or else your tax return will be rejected.  This is the most common mistake.  File Form SS-5 at your local Social Security Administration office.  The form can be found at http://www.ssa.gov/online/ss-5.pdf
2. Notify the IRS of your new address by filing Form 8822.  This form can be found at http://www.irs.gov/pub/irs-pdf/f8822.pdf
3. Notify the U.S. Postal Service of your new address so that your mail can be forwarded.  Notification can be done online at https://moversguide.usps.com/icoa/icoa-main-flow.do?execution=e1s1
4. Notify your employer of any name and address changes so that your Form W-2 will be accurate.
5. Check your wage withholding amounts because each spouse's income will be combined on a joint tax return.  The IRS has a withholding calculator at http://www.irs.gov/individuals/article/0,,id=96196,00.html?portlet=4 which can be used to complete a new Form W-4 to be given to your employer.  The 2011 Form W-4 is available at http://www.irs.gov/pub/irs-pdf/fw4.pdf?portlet=3
6. Choose the correct income tax return form.  The simpler Forms 1040EZ or 1040A may no longer be appropriate, particularly if you will be able to itemize deductions for which the "long form" 1040 is needed.
7. Choose the best filing status.  Your marital status is determined as of December 31 and applies to the whole year.  Usually filing a joint tax return is best, but there are situations for which married filing separate tax returns is better.

Budget Super Committee Introduces Tax Uncertainties

The Budget Control Act of 2011 was signed into law on August 2, 2011, narrowly averting a possible default on repaying U.S. government obligations.  The Act raises the debt limit by $0.9 trillion plus an additional $1.2 to $1.5 trillion depending upon the actions of the super committee.  The Act reduces spending by $0.9 trillion over the next 10 years and creates a 12-member, bi-partisan joint "super" committee charged with making recommendations to cut an additional $1.5 trillion from the deficit over 10 years.  The committee may recommend any combination of spending cuts or tax increases.  If legislation is not enacted by January 15, 2012 to cut the deficit by at least $1.2 trillion, then any shortfall must be taken equally out of defense and social spending by January 1, 2013.  This latter provision is so distasteful to each political party that it is seen as the vehicle to force through an agreement from the super committee.

Super committee appointments are to be made by August 16, 2011 with the first meeting held no later than September 16, 2011.  The committee must vote on their conclusions no later than November 23, 2011.  If a majority votes in favor, then legislative language must be reported out no later then December 2, 2011.  Both the House and the Senate must vote on the proposal by December 23, 2011 with no amendments considered.  The committee may rely on previous proposals to reform spending and taxation due to the time constraint it must work under.  See prior postings dated May 24, 2011, December 6, 2010, and August 30, 2010 for a discussion of these proposals.

When Congress extended the Bush tax cuts at the end of 2010, it was thought that the tax rates could be counted on for at least two more years.  Now with the super committee, its proposals could have effective dates as early as November 2011 rather than January 2013!  It is hard to know what the actual tax proposals will be, if any.  There could be a loss of deductions in exchange for lower tax rates.  There could be an increase on just the so-called "wealthy."  The super committee structure creates uncertainties for taxpayers and businesses with respect to tax planning and budgeting.  In this very politicized environment, to paraphrase Former Speaker Nancy Pelosi when speaking of the health care reform bill, Congress will need to pass the law before we can find out what's in it!

Withholding by Government Entities

If your company sells goods or services to government entities, a new 3% withholding tax will apply beginning on payments received after 2012.  The withholding provision was originally enacted as part of the Tax Increase Prevention and Reconciliation Act of 2005, to be effective in 2011.  The American Recovery and Reinvestment Act of 2009 delayed the effective date to 2012.  Now the IRS has issued final regulations (T.D. 9524) on the matter, further delaying the effective date to 2013.  A additional delay until 2014 is available if your company has a binding contract that is entered into before December 31, 2012.  Certain exceptions are outlined in the regulations.  Legislation was introduced in January 2011 to repeal this withholding provision, but it has not been acted upon.

Government entities are broadly defined to include the federal and state governments, and also political subdivisions and instrumentalities, including public colleges, public universities, and public hospitals.

Withholding is not an additional tax.  It is similar to tax withholding on wages.  While the withholding will have an impact on your cash flow, you will be able to count the withholding as prepaid federal income tax when your tax return is filed for the 2013 tax year.  Changes will need to be made to your internal record keeping systems to identify and track amounts that will be withheld.

UPDATE
On November 21, 2011, the President signed P.L. 112-56 that repeals this 3% withholding law, making the law never in effect.  In its place, Congress enacted a 100% continuous tax levy against federal contractors who are delinquent on their federal taxes.

Taxpayer Identity Theft Rising

The Government Accountability Office recently reported that the IRS is dealing with a near five-fold increase in taxpayer identity theft, rising from 51,702 incidents in 2008 to 248,357 incidents in 2010. However only 4,700 cases were investigated by the IRS.

Thieves are taking taxpayer's tax identification information in order to steal tax refunds.  Thieves file for refunds early in the tax season before the legitimate taxpayer has time to gather records and file tax returns.  In addition, thieves take names and Social Security numbers to gain employment.  Later in the next year, the legitimate taxpayer receives a notice from the IRS that the taxpayer has not reported all of his or her income on the tax return.

If you receive a purported email from the IRS asking for personal information, do not respond, open any attachments, or click on any links.  Instead, forward the message to phishing@irs.gov and then delete the message.  The IRS does not need you to provide your personal identification information, they already have it!  Be careful to safeguard your information by shredding documents rather than just discarding documents containing your information.

If you have been a victim of tax identity theft, contact the IRS Identity Protection Specialized Unit at 800-908-4490.  If your wallet was lost or stolen, you can file Form 14039, Identity Theft Affidavit with the IRS and your account will be marked for review for future questionable activity.  Also consult the Federal Trade Commission's guidance for reporting identity theft at www.ftc.gov/idtheft.

June 30, 2011 Amendment for Cafeteria Plans

Cafeteria plan documents providing for medical flexible spending accounts must be amended by June 30, 2011 to limit the reimbursements to prescribed drugs or insulin.  The cost of over-the-counter drugs may not be reimbursed after 2010.  This change results from the Health Care Reform legislation enacted last year.  The amendment must be retroactive to January 1, 2011 and made by June 30, 2011 according to IRS Notice 2010-59.  The way around this restriction is to receive a prescription from your doctor for the over-the-counter medicine.

Note that the restriction also applies to Health Reimbursement Arrangements (HRAs), Health Savings Accounts (HSAs), and Archer Medical Savings Accounts (Archer MSAs).  If a non-qualifying reimbursement is made by an HSA or an Archer MSA, the reimbursement will be included as taxable income and subject to a 20% tax penalty.

The restriction does not apply to items that are not medicines, such as crutches, bandages, diagnostic devices, etc.

FBAR Due June 30, 2011

U.S. persons having interests in foreign financial accounts must file an annual report with the U.S. government.  The 2010 Report of Foreign Bank and Financial Account (FBAR) must be received by the U.S. Treasury Department in Detroit, Michigan on or before June 30, 2011. The normal postmark rule for timely mailing of tax returns is not applicable. In addition, no extension of time permitted. Owners of entities that are required to file the FBAR must also file FBARs at the owner level if they have more than a 50% direct ownership interest. Significant penalties exist for late or non-filing.

The FBAR is an information return and is filed annually. The FBAR is required for all years in which the maximum bank account value (multiple accounts are aggregated for this purpose) exceeds US$10,000. A year-end exchange rate is used for conversion purposes.  In addition, any account earnings must be included in the U.S. income tax return.

The IRS currently has an amnesty program that provides an incentive for those who have failed to file the FBAR and/or to report the foreign account earnings on their income tax returns.  The program ends on August 31, 2011.  See my posting dated February 28, 2011 for more information.