1.  Click to edit Master text styles  Second level  Third level  Fourth level  Fifth level #11-1 McGraw-Hill/Irwin © 2005 The McGraw-Hill Companies, Inc., All Rights Reserved. McGraw-Hill/Irwin © 2005 The McGraw-Hill Companies, Inc., All Rights Reserved. The Choice of Business Entity Chapter 11

2.  Click to edit Master text styles  Second level  Third level  Fourth level  Fifth level #11-2  This is a tax planning chapter - HOW to use rules  Pass-through losses  After-tax cash flows to individual investor.  Family income shifting  Partnership versus S Corp characteristics  Closely-held corporations  Constructive dividends limit corporate tax avoidance.  accumulated earnings tax, personal holding company tax, tax rates on members of a controlled group.

3.  Click to edit Master text styles  Second level  Third level  Fourth level  Fifth level #11-3 Passthrough Entities  Partnerships (includes LLCs) and S Corps are not taxed as entities. Investors pay tax on their share of entity income.  Single level of taxation.  Cash distributions are generally NOT taxable.

4.  Click to edit Master text styles  Second level  Third level  Fourth level  Fifth level #11-4 Benefits of Passthrough Losses  Passthrough loss is generally deductible in the year the loss is generated at the individual’s marginal tax rate.  Corporation loss must be carried (back) forward and used to offset income in a taxable year where profits are reported. NOL deduction provides a benefit at the corporation’s tax rate in the year the NOL offsets profits.

5.  Click to edit Master text styles  Second level  Third level  Fourth level  Fifth level #11-5Example:  Investor A has $200,000 of taxable income in 2000, 2001 and 2002 before his investment in Entity X. Entity X has an end of year loss in 2000 and 2001 of (50,000) per year and has profits in 2002 of $200,000. What is the net present value at 10% of the tax refunds or payments due on Entity X losses and profits if X is a:  a) pass-through entity? b) corporation?

6.  Click to edit Master text styles  Second level  Third level  Fourth level  Fifth level #11-6 Pass-through Example  2000 deduction = (50,000) x 35% = (17,500) refund  2001 deduction = (50,000) x 35% = (17,500) refund  2002 income = $200,000 x 35% = 70,000 tax  NPV tax cost at 10% if END of year payments = 22,220

7.  Click to edit Master text styles  Second level  Third level  Fourth level  Fifth level #11-7 Corporation Example  2002 net income = $100,000, corporate tax = 22,250  NPV = 16710. Why is this better even though the tax refund was delayed?  lower corporate tax rates  BUT, if corporation pays a dividend, then individual also taxed on 77,750 x 35% = 27,213.  NPV of total tax of 49,463 = 37,162, worse than pass-through.

8.  Click to edit Master text styles  Second level  Third level  Fourth level  Fifth level #11-8 Passthrough Entities Only Have a Single Level of Tax  The preceding example illustrates the benefits of a pass-through entity:  a) use losses immediately  b) single level of taxation

9.  Click to edit Master text styles  Second level  Third level  Fourth level  Fifth level #11-9 Family Income Shifting  Goal - have income taxed at lower rates (e.g. children’s rates) or avoid estate tax.  Remember, income shifting is the RESULT of shifting property ownership - can’t assign income.  If children or other relatives are made partners or co-shareholders, they own part of the business.  The transfer of ownership may have GIFT TAX consequences if relatives don’t pay FMV.

10.  Click to edit Master text styles  Second level  Third level  Fourth level  Fifth level #11-10 Limits on Family Income Shifting  Family members cannot be partners in a personal service business unless they can perform the services.  Family members providing services must first receive guaranteed payment that constitutes reasonable compensation before net income is allocated.  Income of family partnerships is allocated according to proportionate interests in partnership capital.  Income of all S corporations is allocated according to the proportionate shares of stock held by each shareholder.

11.  Click to edit Master text styles  Second level  Third level  Fourth level  Fifth level #11-11 Other Considerations  Gift tax (See Q3)  Legal and accounting costs of creating and operating business  Dilution of parents’ wealth - transfers must be complete and legally binding, irrevocable.

12.  Click to edit Master text styles  Second level  Third level  Fourth level  Fifth level #11-12 Partnership versus S Corporation  S Corps require an IRS election, incorporation documents, possible corporate state tax payments.  Partnership agreements have more flexibility, but require more careful legal drafting.  Partners (but not S Corp shareholders) receive tax basis for liabilities of the partnership.  S Corporation shares are transferable. Partnership interests are not - requires new partnership agreement.  Employee benefit planning favors S Corp.

13.  Click to edit Master text styles  Second level  Third level  Fourth level  Fifth level #11-13 Types of Flow-Through Entity  Liability (See Q6)  Full - General partnership  Limited liability partnership - general partners are not personally liable for malpractice-related claims of another general partner.  Limited partnership - at least one general partner, but other partners have no liability.  Limited liability partnership - partners not responsible for other partner’s malpractice.  Limited liability company (treated like partnership for tax, corporation legally).  S Corporation creates limited liability.

14.  Click to edit Master text styles  Second level  Third level  Fourth level  Fifth level #11-14 Closely-held Corporations  Biggest challenge is how can the investors avoid double taxation of corporate earnings.  If shareholders are also creditors, interest expense is deductible to corporation.  If shareholders are also employees, wage expense is deductible to corporation.  If shareholders are also landlords, rent expense is deductible to corporation.

15.  Click to edit Master text styles  Second level  Third level  Fourth level  Fifth level #11-15 Closely-held Corporations  IRS challenge turns “unreasonable” payments into constructive dividends.  How does the IRS decide what is unreasonable? (AP6)  interest  wages  rent

16.  Click to edit Master text styles  Second level  Third level  Fourth level  Fifth level #11-16 Accumulating Corporate Profits as a Tax Shelter  Keep earnings in corporation.  Small corporations are taxed at low rates.  Delay paying dividends.  Possibly convert ordinary dividend to capital gain by selling stock.

17.  Click to edit Master text styles  Second level  Third level  Fourth level  Fifth level #11-17 IRS Weapons Against Using Corporation as Tax Shelter  Accumulated earnings tax  Penalty is to assess tax on accumulated taxable income at highest individual tax rate - like forcing a deemed dividend.  Common traits that IRS looks for:  Little or no dividends paid  Abundance of liquid assets not reinvested in production capacity.

18.  Click to edit Master text styles  Second level  Third level  Fourth level  Fifth level #11-18 IRS Weapons Against Using Corporation as Tax Shelter  Personal Holding Company tax  Similar penalty assesses tax on undistributed earnings at 15%  Applies to corporations whose income is principally dividends, interest, rents and royalties.  Application of Accum. Earn Tax and PHC tax: rules prevent abuse, so practical assessment of these taxes is rare.

19.  Click to edit Master text styles  Second level  Third level  Fourth level  Fifth level #11-19 Controlled Group Tax Rates  Aggregate the taxable income of all members of a controlled group (>= 80% common ownership).  Compute tax.  Allocate tax according to proportion of taxable income.