Income Tax Planning For Large Estates

If field goals were suddenly worth four points and touchdowns were worth five, football coaches would change their strategies. This type of scoring change has occurred in the estate planning field, but many people keep using their old playbooks.

Recent income and estate tax updates have adjusted how the planning game should be played. If your estate plan was drafted before they came into effect, reconsidering how you structure your estate could save you tens of thousands, or even millions, of dollars.

The Changing Rules

To understand these rule changes, we should rewind to the year 2000. The federal estate tax only applied to estates exceeding $675,000 and was charged at rates up to 55 percent. Long-term capital gains were taxed at 20 percent. Since then, the amount that can pass free of estate tax has drifted higher, to $5.43 million in 2015, and the top estate tax rate has dropped to 40 percent. On the other hand, the top ordinary income tax rate of 39.6 percent when coupled with the 3.8 percent Net Investment Income tax is now higher than the federal estate tax rate.

Although the top capital gains tax rate of 23.8 percent (when including the 3.8 percent Net Investment Income tax), remains less than the estate tax rate, these changes in tax rate differentials can significantly modify the best financial moves in planning an estate. While estate tax used to be the dangerous player to guard, now income taxes can be an equal or greater opponent.

Besides the tax rate changes, the biggest development that most people’s estate plans don’t address is a relatively new rule known as the portability election. Before the rule was enacted in 2011, if a spouse died without using his or her full exemption, the unused exemption was lost. This was a primary reason so many estate plans created a trust upon the first spouse’s death. Portability allows the unused portion of one spouse’s $5.43 million personal exemption to carry over to the survivor. A married couple now effectively has a joint exemption worth twice the individual exemption, which they can use in whatever way provides the best tax benefit. Portability is only available if an estate tax return is filed timely for the first spouse who dies.

From a federal tax standpoint, if a married couple expects the first spouse to die with less than $5.43 million of assets, relying on portability is a viable strategy for minimizing taxes and maximizing wealth going to the couple’s heirs. Estate planning for families with less than $10.86 million in assets is now much more about ensuring that property is distributed in accordance with the couple’s wishes and with the degree of control that they wish to maintain than it is about saving taxes. However, state estate taxes can complicate the picture because they may apply to smaller estates.

Below are a number of plays that families who will be subject to the estate tax should consider to optimize their taxes in today’s environment. Although many of the techniques are familiar, the way they are being used has changed.

The New Estate Planning Plays

Empowering Your Plan’s “Quarterback”

A successful quarterback has a solid group of coaches providing him with guidance, but is also allowed to think on his feet. Similarly, the quarterback of an estate, the executor or a trustee, needs to be given a framework in which to make his or her decisions but also flexibility regarding which play to run. Today’s estate planning documents should acknowledge that the rules or the individual’s situation may change between the time documents are signed and the death or other event that brings them into effect. Flexibility can be accomplished by expressly providing executors and trustees with the authority to make certain tax elections and the right to disclaim assets, which may allow the fiduciaries to settle the estate in a more tax-efficient manner. Empowering an executor has its risks, but building a solid support team of advisers will help ensure he or she takes the necessary steps to properly administer the estate.

Maximize the Value of Your Basis Adjustment

It’s a common misconception that lifetime gifts automatically reduce your estate tax liability. Since the two transfer tax systems are unified, lifetime gifts actually just reduce the amount that can pass tax-free at death. Lifetime gifts accomplish marginal wealth transfer only when a taxpayer makes a gift and that gift appreciates outside of the donor’s estate. In the past, people generally wanted to make gifts as early as possible, but that is no longer always the most effective strategy due to income tax benefits of bequeathing assets.

One big difference between lifetime giving and transfers upon death is the way in which capital gains are calculated when the recipient sells the assets. With gifts of appreciated assets, recipients are taxed on the difference between the transferor’s cost basis, typically the amount the donor paid for the asset, and the sales price. The cost basis of inherited assets is adjusted to the fair market value of the assets on the date of the owner’s death (or, in a few cases, six months later).

When choosing which assets to give to heirs, it is especially important to make lifetime gifts of assets with very low appreciation and to hold onto highly appreciated assets until death. If a beneficiary inherits an asset that had $100,000 of appreciation at the donor’s death, the basis adjustment can save $23,800 in federal income taxes compared to if the beneficiary had received the same property as a lifetime gift. Unfortunately, the basis adjustment upon death works both ways. If the bequeathed asset had lost $100,000 between the time it was purchased and the owner’s death, the recipient’s cost basis would be reduced to the current fair market value of the property. Therefore, it is advantageous to realize any capital losses before death if possible.

Holding onto appreciated assets until death is appealing for income tax purposes, but might not be advisable if the asset is a concentrated position or no longer fits with your overall portfolio objectives. For these types of assets, it’s worth analyzing whether the capital gains tax cost is worth incurring right away or if you should pursue another strategy, such as hedging, donating the asset to charity or contributing the property to an exchange fund.

Choosing not to fund a credit shelter trust upon the first spouse’s death is a perfect example of maximizing the value of the basis adjustment. These trusts were typically funded upon the first spouse’s death to ensure that none of the first spouse’s exemption went to waste. Since the portability rules allow the surviving spouse to use the deceased spouse’s unused exemption amount, it is no longer essential to fund a credit shelter trust. Instead, allowing all of the assets to pass to the surviving spouse directly allows you to capture a step-up in basis for assets upon the first spouse’s death, and then another after that of the second spouse. Depending on the amount of appreciation and the time between the two spouses’ deaths, the savings can be substantial.

Annual Gifting

Making annual gifts is a traditional strategy that remains attractive today. In addition to the $10.86 million that a couple can give away during their lifetime or at death, there are also some “freebie” situations where gifts don’t count towards this total. You can make gifts up to the annual exclusion amount, currently $14,000, to an unlimited number of individuals, and you can double this amount by electing to gift split on a gift tax return or by having your spouse make separate gifts to the same recipients.

Transferring $14,000 may not seem like a meaningful estate tax planning strategy for someone with more than $11 million, but the numbers can add up quickly. For example, if a married couple has three married adult children, each of whom has two children of their own, the couple could transfer $336,000 to these relatives each year using just their annual exemptions. If the recipients invest these funds, the future appreciation also accrues outside of the donors’ estates, and the income may be taxed at lower rates.

Contributing the annual exclusion gifts to 529 Plan education savings accounts for the six grandchildren can accelerate the gifting process and increase the income tax benefits. A special election allows you to front-load five years’ worth of annual exclusion gifts into a 529 Plan, which would currently allow $840,000 in total gifts to the six grandchildren. In this scenario, the grandparents would not be allowed to make any tax-free gifts to the grandchildren during the following four tax years. Since assets in a 529 Plan grow tax-deferred and withdrawals for qualified educational expenses are tax-free, you can realize substantial income tax savings here. If you assume the only growth in the accounts is 4 percent capital gains, which are realized each year, that results in about $8,000 in annual income federal tax savings per year, assuming the donor is in the top tax bracket.

You can also pay a student’s tuition directly to the college or university, since these payments are exempt from gift tax. This exception applies to medical expenses and health insurance premiums as well, as long as payments are made directly to the provider.

Given that annual exclusion gifts don’t impact the $5.43 million lifetime exemption, I recommend making these gifts early and often, but remember to give away cash or assets that have very little realized appreciation. The earlier you make a gift, the more time the assets have to appreciate and pay income to the recipient.

Lifetime Charitable Giving

Earlier I mentioned that you want to avoid giving away appreciated securities during your lifetime. The exception to that rule is a gift to charity. By donating appreciated securities that you have held for more than one year, you can get a charitable deduction for the market value of the security and also avoid paying the capital gains tax you would incur if you were to sell the asset.

If you know you have charitable intentions, it is more effective to donate appreciated securities earlier in life, rather than at death, since doing so removes future appreciation of the assets from your estate.

Using Trusts to Increase the Effectiveness of Transfers

Lifetime transfers to standard irrevocable trusts are no longer as appealing as they used to be, now that the estate tax rate is closer to the capital gains rate. Assets transferred to irrevocable trusts during the grantor’s lifetime typically do not receive a basis step-up upon the grantor’s death. Therefore, determining whether it is more appealing to make lifetime transfers or bequests in a specific circumstance requires making assumptions and analyzing probable outcomes.

Nonetheless, funding certain trusts in conjunction with other planning techniques can increase the planning’s effectiveness. An intentionally defective grantor trust (IDGT) is one of the most appealing types of trusts for wealth transfer purposes, because the donor is treated as owner of the trust assets for income tax purposes but not for estate and gift tax purposes. A defective grantor trust is a disregarded entity for tax purposes, so any income that the trust earns is taxable to the grantor. By paying the tax on trust income, the grantor effectively transfers additional wealth to the beneficiary.

Another popular strategy is for a grantor to make a low interest rate loan to a defective grantor trust. The trust then invests the funds. So long as the trust’s portfolio outperforms the interest rate charged on the loan, the excess growth is shifted to the trust with no transfer tax consequence.

One of the common ways to cause a trust to be intentionally defective is for the trust document to allow the grantor to retain the power to substitute assets held by the trust for other assets. Assuming a trust has this provision, it is very powerful to routinely swap highly appreciated assets held by the trust that would not be eligible for a basis step-up with assets of equal value held by the grantor that have little to no appreciation, such as cash.

Rather than funding a credit shelter trust upon the first spouse’s death, a surviving spouse might choose to receive all of the assets outright and then immediately fund an IDGT that includes the power to substitute assets. The trust’s income would be taxed to the surviving spouse, allowing for additional wealth transfer, and the grantor could use the swapping power to minimize the income tax cost of the lost basis adjustment.

Any transfer technique, such as a grantor retained annuity trust (GRAT), that allows a donor to transfer assets without generating a gift is also valuable, since it helps preserve the lifetime exemption amount as long as possible, thus maximizing the assets that can benefit from adjusted basis.

Finally, trusts can be useful for keeping assets out of your estate that never should have been included in it. For example, wealthy individuals should generally purchase life insurance through an irrevocable trust, rather than directly in the insured individual’s name. Life insurance owned by decedents is includible in their taxable estates. By creating a trust funded through annual exclusion gifts and having the trust purchase the policy, you can ensure that the estate tax does not take 40 percent of the policy’s proceeds.

Avoid Paying Estate Tax on Income Tax

While the term “income in respect of a decedent” (IRD) might be obscure, it’s important to understand it, since it’s one of the worst deals in town. IRD is income that a decedent was entitled to but did not receive prior to death. While unpaid salary and accrued interest are common examples, the biggest risks lie with retirement accounts and annuities.

Retirement accounts, such as 401(k)s and traditional IRAs, are typically funded with pretax money and taxed on the decedent’s estate tax return at their market value on the decedent’s date of death. However, because these are pretax assets, the beneficiary ultimately has to pay tax on the income before receiving it. In a simple example, if a decedent has a $1 million IRA that is being taxed on the estate tax return at 40 percent in 2014, the recipient would also need to pay additional tax on withdrawals from the IRA when he receives it. Assuming no growth in the assets and that the beneficiary is in the top income tax bracket, taxed at a rate of 39.6 percent, the recipient would need to pay $396,000 income tax as a result of the bequest and the estate would pay $400,000 of estate tax. This results in a total tax of $796,000 from the $1 million of assets. Compare this with a taxable account, in which assets would have their cost basis adjusted to the fair market value on the date of death, so the recipient typically needn’t pay much, if any, income tax to access the assets. Therefore, the tax would only be $400,000 – about half of the amount applied to the IRA.

The additional tax is a bit overstated in the example above, because the estate tax paid on the IRD can be an itemized deduction that is not subject to the 2 percent floor. Nonetheless, it illustrates the point that it is better to minimize IRD and the resulting double taxation if possible.

It may make sense to take distributions from your own pretax accounts in certain situations, because paying the income tax during your life allows you to reduce your ultimate estate tax exposure. Converting traditional retirement accounts to Roth accounts can also help maximize the value of your estate. Most people will want to avoid annuities too, not only because of their typically high fees, but because they are treated as IRD and do not receive a basis adjustment upon the owner’s death.

The right play for your estate plan has become even more specific to your situation: where you live, how you invest, your life expectancy, your goals and priorities, and your future life plans. With no one-size-fits-all answer, it’s important to run financial projections to understand both the income and transfer tax consequences of your choices, so you can determine the best moves for your situation. Make sure you have someone on your team that can accurately analyze what’s best for your situation and, above all, keep your game plan flexible.

How To Benefit From Tax Diversification

Tax diversification is integral to a well-structured retirement plan. By holding assets in accounts with different tax treatments, such as traditional IRAs, Roth accounts and taxable investments, you can balance current and future tax benefits and gain flexibility to deal with unexpected circumstances.

The Three Types Of Investment Accounts

Many investors look down on taxable investment accounts because of the taxes they must pay each year on interest and dividends, as well as any gains resulting from sales. However, such accounts do offer several benefits. First, they are incredibly flexible. There is no restriction on the types of investments you can make on a taxable basis. And while both traditional and Roth-type retirement accounts are subject to annual contribution limits and to penalties for early withdrawal, there is no limit on contributions to a taxable account, and there are no penalties when you need access to the funds before your retirement.

Qualified dividends and capital gains are taxed at favorable rates in taxable accounts (zero for lower-income taxpayers, 15 percent for most taxpayers and 23.8 percent for high-income taxpayers). Also, investments sold at a loss can be used to reduce one’s tax liability. Since you can generally control when you sell an investment, you can control when you pay much of the tax liability that such accounts generate. The government again favors taxable investments upon the owner’s death. At that time, the cost basis is adjusted to the fair market value, and no capital gains tax is due if the estate immediately sells the holdings.

At first glance, tax-deferred retirement accounts, such as traditional 401(k)s, traditional IRAs and similar plans, may seem to be the most appealing savings options because, by reducing your current tax bills, they give you the biggest upfront benefit. Since none of the income is taxable until withdrawals are made, you may be able to save more overall as the benefits continue to compound.

Regrettably, savers can wind up paying for this upfront tax benefit later in life. Distributions from tax-deferred accounts are treated as ordinary income, even if the growth in the account was generated from investments that would have been taxed at lower capital gains rates in a taxable account. So you would effectively split any profits in tax deferred accounts with the government. If an account grows by 10 percent per year and your tax rate stays the same, the eventual tax liability grows by that same 10 percent. In addition, the Internal Revenue Service generally requires retirees to begin taking certain minimum distributions from tax-deferred accounts at age 70 1/2, which can force you to generate taxable income at inopportune times. Furthermore, investments in a tax-deferred account do not receive a basis adjustment when the account holder dies. Beneficiaries will need to pay income tax when they withdraw assets from these accounts.

Tax-free or Roth accounts can be hard to beat. Although there is no immediate tax deduction for contributions to these accounts, all of the profits go to the investor. The government receives its share at the outset, then current account income and qualified distributions are never taxable. As a result, $1 million in a Roth account is worth significantly more than $1 million in a tax-deferred account, because the balance in a Roth account can be spent during retirement without having to pay any taxes. Another benefit of Roth IRAs in particular is that the IRS does not require distributions from them the way it does from traditional retirement accounts (though such distributions are required from Roth 401(k)s).

Of course, there are drawbacks to tax-free accounts, too. For one, funding a Roth account is more difficult. It takes $15,385 of pre-tax earnings to contribute $10,000 to a Roth account, assuming a 35 percent tax rate. In addition, there’s always the possibility that future legislation could decrease or eliminate the benefits of Roth accounts. If, for example, the federal government or individual states lowered tax rates or shifted to a consumption-based tax system, a Roth IRA would have been a poor choice compared with a traditional IRA, since there is no upfront tax benefit.

Choosing Which Account To Fund

Some rules of thumb can help you determine which types of retirement accounts to use. First, you should have sufficient safe, easily accessible assets in a taxable account as an emergency fund. Six months of living expenses is a good starting point, but the actual amount varies based on your expenses, the security of your current job and how quickly you could get a new job. Funds that you will need access to before retirement should also be kept in a taxable account.

If an employer matches contributions to a retirement plan, you should, when possible, contribute enough to get the full match. Any employer match will automatically be allocated to a tax-deferred account, but you should determine whether the plan will provide a match even if you contribute to a Roth account.

The common wisdom says that you should contribute to a traditional IRA or 401(k), rather than a Roth IRA or 401(k), if your current tax bracket is higher than the tax bracket you expect to occupy in retirement. If the reverse is true, a Roth IRA is the default choice. Although these guidelines are good starting points, savers are generally best served by keeping some assets in each type of account – which is the idea of tax diversification.

People’s lives and future tax legislation are inherently uncertain. Even if you expect your federal tax bracket to remain the same in retirement, it might go up if tax rates go up overall or if you move to a higher-tax state. There is no way to know exactly what your situation will look like in any given year of your retirement. You should have some assets in each type of account, but the particulars of your circumstances will dictate their relative size. As with other sorts of diversification, there is not a one-size-fits-all plan.

Going Above And Beyond Retirement Savings Limits

Selecting the best retirement plans for your situation is beyond the scope of this article, but some planning can allow you to funnel much more money into tax-advantaged accounts than you might have otherwise expected.

Some employers offer defined contribution plans with higher limits than a 401(k), and it is very easy for self-employed individuals to set up SEP IRAs. For high-earning small-business owners, it may be worthwhile to set up a defined benefit (pension) plan, which can allow for much higher contributions. Certain employers also offer nonqualified savings accounts that allow you to defer income in excess of the limits for the qualified plans listed here, but they add different risks.

Besides employer-sponsored plans, annuities and life insurance can also offer tax advantages, but most savers should proceed cautiously. Annuities provide tax deferral, but lack the upfront tax benefit that makes other tax-deferred accounts so appealing. Also, distributions from annuities are taxed at ordinary income tax rates, so if your tax rate is expected to remain high through retirement, you effectively allow the government to take a higher share of your profits than would be the case in a taxable account. If your income tax rate is expected to drop substantially in retirement, certain annuities can be effective savings vehicles once you have exhausted your other options. In many cases, the higher costs of life insurance products outweigh their tax benefits.

If you want to funnel more money into a tax-free account, you might consider converting a portion of your tax-deferred retirement accounts to a Roth IRA. You will have to pay tax on the income at the time of the conversion, but if you expect your tax rate to remain the same or increase in the future, it may be profitable to shift some funds to a Roth. Finally, if you plan to use any of your savings to fund education expenses for a child or grandchild, you might consider funding a Section 529 college savings account. The investments in such accounts grow tax-deferred, and any distributions used for qualified education expenses are tax-free.

How To Spend Down Retirement Accounts

The order in which you withdraw assets during retirement is just as important as the choice of which accounts to fund. By mindfully selecting which account you withdraw from each year, you can lower what you pay in taxes.

The first assets you spend should typically come from your taxable accounts. However, in a low-income year, when your income tax rate may be lower, it may make sense to pull some funds from a tax-deferred account. In some cases, you can take taxable distributions without generating any tax liability at all. Spending from tax-deferred accounts may also make sense if your taxable accounts have highly appreciated securities that you plan to hold until death. Run tax projections each year to weigh the benefits of withdrawing from a taxable or a tax-deferred account.

Aim to keep assets in your Roth accounts for as long as you can, allowing the investments to continue to grow tax-free while you deplete other assets that generate tax liability.

For most retirees, no two years will look alike. More important, there is no way to know decades in advance what a given person’s tax situation will be throughout retirement. As with any long-term investment plan, it is essential to create a strategy that is flexible and can work even when circumstances change. By taking care to diversify the tax character of your accounts, you build in choices that will allow you to adapt to a variety of financial situations much more easily and, ultimately, to preserve more of your diligently saved retirement funds.

Tax Concepts and Considerations of Municipal Bonds

Bonds are available in both taxable and tax-exempt formats and there are tax concepts to consider when a person is investing in bonds. Each type of bond, whether tax-exempt or not, has different tax aspects. Tax-exempt municipal bonds and taxable bonds are discussed, explaining how some of the tax rules work for these investments and their investment yields.

Acquisition of Bonds

When purchasing tax-exempt municipal bonds at face value or par, there are no instant tax consequences. When the bond is acquired between interest payment dates, the buyer pays the seller interest that has accrued since the last payment date. The interest paid in advance to the seller is treated as the cost of the investment and is treated basically as a return of some the initial investment when the interest is paid.

Bond Premium Amortization

When tax-exempt municipal bonds are purchased at a premium, the premium is amortized for the duration of the bond term. The effect of this is to decrease the cost of the investment in the bond on a pro rata basis. Thus, holding the bond to maturity means no loss recognized when the bond is paid off.

Interest Excluded From Taxable Income

Normally, tax-exempt municipal bond interest is not added to income for tax purposes (although, the interest may be taxable under alternative minimum tax rules). Also note, municipal bonds usually pay lower interest rates as compared to similar bonds that are taxable.

When comparing taxable investments to tax-free investments, the amount of interest included in income is not the most important issue. What is important is the after-tax yield. For tax-exempt municipal bonds, the after-tax yield is usually equivalent to the pre-tax yield. On the other hand, a taxable bond’s after-tax yield will be based on the amount of interest remaining after deducting the corresponding amount of income tax expense associated with the interest earned on a taxable bond.

The after tax return of a taxable bond depends on a person’s effective tax bracket. In general, tax-free bonds are more appealing to taxpayers in higher brackets; the benefit of not including interest earned in their taxable income is greater. In contrast for taxpayers in lower brackets, the tax benefit is less substantial. Even though municipal bond interest is not taxable, the amount of tax-exempt interest is reported on the return. Tax-free interest is used to calculate the amount social security benefits that are taxable. Tax-free interest also affects the computation of alternative minimum tax and the earned income credit.

Tax-Free Interest is excluded from 3.8% NIIT

Tax-exempt municipal bonds interest is also exempt from the 3.8% net investment income tax (NIIT). The NIIT is compulsory on the investment income of individuals whose adjusted gross (AGI) is in excess of:

· $250,000 for filing status Married Filing Joint and Qualifying Widower,

· $125,000 for filing status Married Filing Separate, and

· $200,000 filing status Single and Head of Household.

Tax Advantaged Accounts

Purchasing municipal bonds in your regular IRA, SEP, or §401(k) is a no-no. These accounts grow tax free and when withdrawals are made, the amount withdrawn is taxable. Thus, if you desire fixed income obligations in a tax advantaged account consider taxable bonds or similar income securities.

Alternative Minimum Tax Considerations

Interest on municipal bonds is usually not included in income for regular federal income taxes. Interest earned on certain municipal bonds called “private activity bonds” is included in the calculation of alternative minimum tax (AMT). The AMT is a parallel tax system established to make sure that taxpayers pay a minimum amount of taxes. The intention of creating AMT was to prevent people from getting to many tax breaks, for example tax-free interest. The tax breaks are added back into income and cause some people lose tax breaks and pay taxes.

Effects of Tax-Free Interest on Taxability of Social Security

A percentage of social security benefits are taxable when other income besides social security benefits surpasses certain amounts. For this purpose, the amount of taxable social security benefits adds tax-exempt interest into the amount of other income received besides social security benefits to determine the amount of taxable social security benefits. Consequently, if you receive social security benefits, tax-free interest could increase the amount of tax paid on social security benefits.

Effects of Tax-Free Interest on the Calculation of Earned Income Tax Credit

When a taxpayer is otherwise qualified to receive the earned income tax credit, the credit is lost completely when the taxpayer has more than $3,400 (2015) of “disqualified income.” Disqualified Income generally is investment income like dividends, interest -income, and tax-exempt income. Thus, having municipal bond interest in excess of $3,400 causes a taxpayer to lose the credit. However, an individual qualified for the earned income tax credit is in a lower tax bracket and an investment in municipal bonds would yield a lower after tax return as compared to taxable bonds.

A Bond Sale or Redemption

Selling a bond before maturity or redemption has the same tax consequences as a taxable bond. Gains from sale are taxable. Losses are deducted from other gains; and losses in excess of gains are allowed up to $3,000, the remaining losses are carried over to future years.

Selling Bonds Purchased At a Discount

Bonds acquired with “market discount”, have special calculations then they are sold. The discount that accrued during the period maybe treated as ordinary income.

Mutual Funds

Some investors want professionals to manage a diversified portfolio of municipal bonds, to lower the default risk on any particular bond issue. There are certain mutual funds that invest in tax-free municipals and manage them.

We hope this article was helpful. This article is an example for purposes of illustration only and is intended as a general resource, not a recommendation.

Need assistance with above rules? Have any other questions.

Accountant Pompano Beach

Ultimate Practical Tax Lawyer Secrets to Tax Audit Survival

CRA Income Tax Audit – Toronto Tax Lawyer Introduction

As Toronto tax lawyers we deal with CRA audits and auditors on a daily basis. So what is a tax audit? This article will explain what you can expect to happen if you are audited for taxes.

The Canadian income tax system is based on self assessment. In other words it is up to every Canadian taxpayer to fully and properly report their total income from all sources on their annual T1 or T2 income tax return. The Canada Revenue Agency performs tax audits and issues income tax assessments to ensure that the self-assessment income tax system continues to work properly. While most Canadians are truthful on their tax returns, there are some who are not. CRA is looking for errors or disputable positions or deliberate misstatements on tax returns that have been filed.

What is a Tax Audit?

An income tax audit is an examination of a taxpayer’s returns and supporting records to make sure that income and expenses have been properly reported and are supported by accounting records and receipts. The CRA tax auditor will ask to see the individual or corporate books and records and bank account and receipts for expenses. A corporation will normally have to provide its minute book to support any dividends or bonuses. There may be questionnaires to be filled out. Any information that is wrong, even if due to an error, will be used against the taxpayer.

Most audits are done to ensure compliance with the Income Tax Act for income or payroll deductions or under the Excise Tax Act for GST/HST.

Canadian Tax Audit Procedures

CRA auditors will often search for relevant information on the Internet, and a taxpayer’s web site or other sources located on Google might contradict information the taxpayer provides to the auditor. This information will then be used for further enquiries possibly including 3rd party requests for information. Furthermore open social media accounts are publicly accessible, and CRA auditors will gather this data from taxpayer social media accounts to build a case against a taxpayer. CRA officials have publicly discussed using taxpayer’s social media accounts in this way. If taxpayer lifestyle and reported income don’t match up the CRA tax auditor may decide to look into the taxpayer’s situation to see what’s actually going on.

CRA’s practice on income tax audits is to do a GST (and HST) compliance review; if problems are found, the matter is normally forwarded to a GST/HST auditor for a full GST/HST audit. Similarly, an income tax compliance review is often done during GST/HST audits. Combined income tax and GST/HST audits were discontinued in July 2010. These compliance reviews are not always carried out and sometimes income tax audits may miss large GST/HST problems and vice versa.

CRA Audit Statistics

CRA issues an annual report to Parliament. The latest one was released in January 2016. The audit statistics from CRA Annual Report 2014-2015 provide less detailed information than for the previous year.

For small & medium enterprises no statistics were given. CRA reports that they reviewed 12,981 international and large business files and 9,440 aggressive tax planning files that resulted in identifying $1.4 billion in fiscal impact. For international and large business files CRA audited 6,540 income tax and GST/HST underground economy files and identified over $448 million in fiscal impact. In all cases there were fewer audits in 2014/15 that the previous year. Presumably this reflects the results of budget changes.

Reasons for Tax Audit

CRA may choose to audit a taxpayer for several reasons. Amongst them are:

  • Industry audit projects
  • Random selection
  • Third party tips
  • Past history of non-compliance
  • Comparison of information on returns to information received from third-party sources – in other words are all T-slips reported

Since 2011 CRA has been auditing high net worth individuals and families, sending questionnaires asking for information about all companies, trusts, etc. that they control.

CRA has also been concentrating additional audit resources on the underground economy in an attempt to deter unreported cash sales.

What is the Tax Auditor Looking For?

The focus of the tax audit is to find errors in tax returns. Here are some examples of typical issues that may arise in a tax audit that would cause a taxpayer to receive a tax assessment at the end of the tax audit and that could result in penalties or a referral for a tax evasion investigation:

  • Overstated Expenses
  • Overstated Deductions
  • Over claimed Income Tax Credits
  • Under reported or unreported Earnings
  • Unreported cash sales
  • Unreported internet income
  • Unreported offshore income
  • Unreported offshore assets
  • Credits, such as for charitable donations, that are not supported by receipts
  • Personal expenses deducted for business
  • Shareholder loans not repaid within 2 corporate year ends

Right of CRA to Audit and CRA Audit Policies

Section 231.1 of the Income Tax Act gives CRA the statutory ability to carry out audits. In particular it entitles auditors to request and examine documents including computer records. Section 231.2 is a more formal provision whereby a “demand” or “requirement” is issued, but it need not be used by a tax auditor in the normal course where s.231.1 suffices.

The CRA can choose to audit anyone, but case law has held that such discretion does not permit a vexatious audit made for capricious reasons.

The Canada Revenue Agency has an internal policy in CRA Audit Manual §9.12.3 that audits should normally be limited to “one plus one” years that is to say the most recent year for which a return has been filed and assessed, plus one year back, with limited exceptions. This policy can be pointed out to a tax auditor to try to limit the scope of audit requests, but it has no legal effect and cannot be used in court to challenge a tax assessment that has been issued. Of course this rule of one plus one years does not apply in the case where CRA suspects unreported income. They will typically look at three years, and in some cases even more than 3 years.

In theory, the CRA has no discretion in applying the Act and must “follow it absolutely” by issuing a tax assessment for all otaxes wing. The reality is that in practice tax auditors have wide discretion not to assess an amount, however once it is correctly assessed; a Tax Appeals Officer or Tax Court judge will have no power to cancel it on grounds of equity, fairness or compassion.

Tax Audit Assistance from Toronto Tax Lawyer

Our top Toronto tax lawyers fight CRA tax auditors every day. A taxpayer has the right to professional representation at all times. This is specifically provided for in right 15 of the Taxpayer Bill of Rights which says “You can choose a person to represent you and to get advice about your tax and benefit affairs. Once you authorize us to deal with this person, we can discuss your situation with your representative.” A taxpayer should never meet with a CRA auditor without a professional Canadian tax lawyer present. Any information that is wrong, even if due to an error, will be used against the taxpayer. The auditor will also take notes and may misunderstand what the taxpayer has said or may wrongly record responses. An Ontario tax lawyer will have his or her own notes to contradict any auditor errors. Contact our Toronto tax law firm for tax help as soon as a CRA tax auditor contacts you.

Founding lawyer, David Rotfleisch is an expert in the realm of income tax law.You might say that income tax is David’s passion for David is not only a lawyer, he is a chartered professional accountant. He has helped start-up businesses, resident and non-resident business owners and corporations with their tax affairs, and over the years, he has assisted numerous corporations and individuals with simple and complex tax and estate planning matters as well as tax amnesty and tax litigation issues.

We are Toronto based tax lawyers with more than 25 years of experience. We deal with all tax problems of the Canadian citizens and find out the perfect solution for them in a quick,responsive and efficient way. We fight CRA daily. Share your income tax problems with us and sleep at night.

Maritime Taxes: Saving Money On The Water

The siren call of boat ownership is easy to understand, here in South Florida. On a hot summer day, or even a crisp winter afternoon, getting out on the water for some sailing, fishing, snorkeling or water skiing can seem like the perfect reason to take the plunge.

Florida, and in particular the Greater Fort Lauderdale area where I live and work, is a major center for the motor yacht and boating industry. In South Florida, about 136,000 people currently work in the industry. According to industry figures for 2014, 19 percent of the over 30,000 boats sold in the U.S. that year were sold in Florida.

If you are ready to invest in a boat of your own, whether a modest fishing boat or a high-end yacht, it is worthwhile to pause and consider the tax implications, wherever you may live. Depending on the ways in which you intend to use your new watercraft, that impact could be minimal, or it could significantly change your overall financial picture.

Taxing Boat Sales

As with any big-ticket purchase, you should keep sales tax in mind when you are ready to buy your vessel of choice. There is no federal vessel tax, and federal luxury tax was repealed in the 1990s, so Uncle Sam does not take any particular interest in whether or not you choose to buy a boat. The states, however, want their cut. Every state is different, so be sure to take the time to understand any particular quirks in state law before you buy.

In Florida, for instance, boats are subject to the state sales tax rate of 6 percent, in addition to any local taxes. However, as of 2010 Florida has capped this tax, limiting it to the first $300,000 of a boat’s purchase price. Thus, under current law, Florida will not collect more than $18,000 in sales tax on your new vessel. In addition, many Florida counties impose a discretionary sales surtax, which can apply to the first $5,000 of the purchase price. These sales tax caps make buying a high-end boat more attractive in Florida.

The Florida Legislature’s revenue estimating committee projected in 2010 that the tax cap would cost the state as much as $1.4 million in the first year. Instead, tax collections on yacht sales in the state rose more than $13 million in that time. Buyers who previously spent large sums to form offshore companies in order to skirt the state tax found it cheaper and easier to simply pay the Florida tax outright. So before you buy a boat, consider whether you can get a better deal by buying and berthing it in another state.

The cap on boat sales tax was so powerful that other states are competing by passing caps of their own. Recently, Maryland, New Jersey and New York all passed or are considering passing laws to cap the tax on boat sales. Depending on your politics, you may consider this an unnecessary tax break for the wealthy boat-buying class, but based on the increase in tax revenue after Florida’s cap went into effect, you can also see how lowering taxes and state competition can sometimes lead to long-term economic benefits. More boat sales in Florida lead to more employment and growth in marine-related industries in the region.

For whatever sales tax you do pay on your boat purchase, you may be able to realize some benefit when filing your federal income taxes. Assuming you itemize your deductions, you can deduct local sales tax in lieu of claiming state and local income taxes. Especially in states – like Florida – that do not levy a personal income tax, this can represent a significant deduction. The main calculation of the general sales tax deduction is based on your adjusted gross income, but you can add sales tax paid specifically on a car or boat purchase to that amount.

Make sure you also understand how a state’s use tax may impact you. For the typical recreational vessel, use tax will not matter, because sales and use tax are mutually exclusive – if you pay sales tax on a transaction, you cannot also owe use tax. That said, if you plan to use a watercraft primarily in a different state than the one where it was purchased, it is worth taking the time to make sure you understand your home state’s rules and that your documentation is in order so you do not end up a target for overzealous state tax authorities.

You should also educate yourself on state and local taxes related to a watercraft which may apply on an annual or ongoing basis. Certain states and local authorities levy personal property taxes annually on boats docked within their jurisdictions.

On the other hand, some states offer particular tax breaks to boat owners. For example, last year Florida passed a law limiting the sales tax on boat repairs to no more than $60,000, or the first $1 million of repair costs. Like the sales tax cap on boat purchases, the law is intended to allow Florida to maintain its status as a leader in the marine industry. The hope is that the cap on boat repair sales tax will attract and retain repair and refit business for luxury yachts and other high-end boats in the state, thereby increasing revenue and employment, bolstering the local economy. If you own a yacht in a high-tax state, it could make sense to cruise it down to Florida for major repair work to save on taxes. Some states even offer a tax credit on fuel used for recreational boating. Yes, even the boating industry has a strong lobby group to push state legislators for tax breaks.

Living On Your Boat

While it makes sense to think of your vessel in the same way you might think of a car or recreational vehicle, there is another way to characterize it. In some cases, a boat can plausibly serve as a second home, meaning it can offer deductible home loan interest. In order to qualify, the vessel must include cooking, sleeping and toilet facilities; do not try to convince the Internal Revenue Service that you live on your jet ski.

There are a few other caveats. The deduction is on mortgage interest secured by the residence, so the deduction will not affect you if you bought your boat outright or used some personal line of credit, such as a credit card. Also, if you are already deducting interest on a second home, you cannot deduct both it and the boat loan interest in the same year, though you may switch between them from year to year if you wish.

A boat may even be your primary residence. Technically, as long as it meets the bed, bathroom and kitchen (or rather galley) test, you can declare your boat to be your main home. Note that if you use your boat for business, as I’ll discuss in the next section, you must divide your home between the part that is your primary residence and the part that is used to generate income. If your boat is your primary residence and it does not dock in the same port regularly, you may face a tricky tax domicile situation too.

Your Boat As A Business

Many boat owners use their boats to earn income, either on the side or as their main business. Depending on your situation, you may decide to use your vessel as a fishing charter, to run scuba or snorkeling tours, or to serve as a private ferry. As with a land-bound venture, you will need to take care to steer clear of the IRS’ hobby-loss rules by proving your genuine intention to make a profit, rather than just cover the costs of your time out on the water.

The benefit of establishing your activities as a genuine business is the ability to write off the boat’s depreciation, maintenance, equipment and fuel costs. You may not want to devote your boat exclusively to chartering; if not, you will need to keep track of the time and costs spent on private and business pursuits. Either way, you should always keep good business records and institute an accounting system to track your business activity.

As with other forms of self-employment, you will be responsible for income taxes and self-employment taxes. Remember that you may be subject to estimated income tax, which is due quarterly. Many boat owners choose to transfer their boat ownership to a limited liability company (LLC) for liability protection, but since this is a pass-through entity for tax purposes, it will not generally make much difference to your personal tax situation. If you are not used to running your own business, it may make sense to consult a tax professional or a Certified Financial Planner™ to make certain you keep up with your personal and business tax responsibilities.

If your boat business involves crossing state lines, you may need to be particularly careful about documenting the way income is sourced. Many people run up against the complications of conducting business in multiple states, and the water adds another complication. However, under a specific federal law (Chapter 46, U.S.C. Sec 11108(b)), working on navigable waters in the jurisdiction of more than one state is not sufficient to subject you to the states’ income tax rules. For example, if you live in Florida but work as a crewman on a vessel that operates in or passes through waterways of other states, only Florida – your state of residency – can impose its income tax laws (or lack thereof, since Florida has no state personal income tax). This law is particularly important for crewmembers on dredging vessels, which may operate in multiple states’ waterways (up the Mississippi river, for instance).

If you intend to find yourself operating in more than one state regularly, it may be best to consult a tax professional at the outset to understand what factors could affect your taxes. Where and how often a vessel docks and how much work is conducted on or connected to land can make a difference.

Some boat owners have no interest in running a small business, but would still like to offset the cost of owning a watercraft. An alternative strategy is to place the boat in charter with a reputable charter company. In such an arrangement, you typically retain ownership of the vessel, while the company assists you in managing what is essentially a rental business. Before you go this route, you will want to perform thorough due diligence and make sure your state’s business laws support such an arrangement, and you should understand your potential liability exposure.

What if your boat is also your office? The rules will be the same as for a home office ashore. The IRS primarily will consider whether you use your boat office exclusively and regularly for business purposes. For a boat-based office, the tricky requirement is usually the exclusive use test, because boats often have multi-purpose rooms. The IRS wants to see that you maintain a separate room or dedicated workspace that you use exclusively for business purposes.

If you are an employee and you use a part of your boat for business purposes, you may qualify for a deduction for its business use, but in addition to the exclusive and regular use tests, the boat office must also be for the convenience of your employer. You also must not rent any part of your boat to your employer and use the rented portion to perform services as an employee for that employer. If the use of the boat office is merely appropriate and helpful, you cannot deduct expenses for the business use of your boat office.

In many geographic regions it is only practical to use boats seasonally; note that an office aboard a vessel qualifies only for deductions during the time of use. IRS rules prohibit deducting office expenses aboard the boat during the period when you are not using the boat office for business purposes, or when the boat is in dry dock or storage.

A boat of your own can serve as a fun way to enjoy time on the water, a secondary or primary source of income, or even an unconventional place to call home. But besides the high costs of buying and maintaining a vessel, don’t overlook the tax considerations when deciding whether to answer the call of the open water.