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ABCast Episode 17 - Real Life Scenarios Part 2

Jan and Neil Continue their conversation about real life challenges our clients have faced, situations to avoid and best practices to be observed.  Jan’s insights can help you as either a business or as an individual.

Jan

Welcome to AB Cast, integrating Legal Tax Accounting and Business Solutions. I’m Jonathan Allen. This episode is about more real life lessons, not to be repeated.

Neil

So Jan, as we pick up the next part of our story, more life lessons, not to be repeated. We were having a conversation about F bar issues and people who live offshore. And that same conversation applies more recently to those who hold cryptocurrency and non-fungible tokens or NFTs. How are the two related and what are some of the things that crypto holders need to be aware of and to avoid? then move the section down to alternate speakers.

Jan

Well, from our perspective, crypto is a real quagmire. It is complicated at best and with very little guidance coming from the Internal Revenue Service in the form of regulations as to how it is crypto should be recorded. It’s creating issues for our office in explaining to individuals that have delved into the crypto world, what really is going to be needed in order to do the reporting that we think is going to be required, not only now, but probably in the near term as well. So the issue that we have with the cryptocurrency really is understanding or getting clients to understand that every time something is moved from a wallet to another wallet or from one platform to another platform that constitutes a transaction and that transaction will have a gain or a loss depending on what it is that’s occurred in the movement of the crypto.

And so the idea that people can hide the crypto because they don’t think that the IRS is going to be able to find their accounts is probably the worst case of sticking one’s head in the sand that I can think of. The issue is going to be how are we going to aggregate the information that’s necessary to report the crypto in a an appropriate manner, and particularly for those that are living or are transacting overseas as well. The moment you go offshore and you leave the US and you go into a foreign platform, now not only do you have cryptocurrency complications in terms of filing a tax return, you also now have foreign reporting requirements as well.

Neil

So Jan, for those who just think I’m too small, they’re never going to find me, they have two immediate challenges. One is the question that’s at the top of the 10 40, do you have any cryptocurrency holdings? And then the second is that little paragraph about perjury right above their signature line. Can you talk about those two things?

Jan

You know, I had a client hit me with that the other day that he had invested in crypto, but he hadn’t transacted crypto. So they were, clients are beginning to question the meaning of the question on the tax return itself. But that being said, when the IRS is inquiring about whether or not you’ve had transactions in cryptocurrency, the failure to check that box and then the signature of the taxpayer on that tax return under penalties of perjury is the way that the I R S will prosecute those that have crypto and yet haven’t gone back and declared it to the Internal Revenue Service. So Al Capone, in all of the dealings, the Great American gangster and all of the illegal acts he committed was never prosecuted for those illegal acts except for tax evasion. And the same thing is going to hold true here. The I R S is looking for individuals that are investing in crypto that have made transactions, making transactions, moving them from one platform to another platform, bringing the investments outside of the us, investing in foreign platforms. And to the extent that that is not recognized and reported on the internal revenue or on the IRS forms when you’re filing your tax returns is going to become a huge problem for those individuals who are in violation of the law.

Neil

Jan, the first year the IRS put that question on our tax returns, how many Americans checked the box?

Jan

The reported number coming from the Internal Revenue Service was there were 180,000 people that clicked that box. The idea that essentially only 180,000 people had invested in or had anything to do with crypto as sort of ludicrous. Because when you go back and you see the compliance numbers in subsequent years, those numbers have increased exponentially.

Neil

So the IRS did a John Doe summons on a US Exchange, and the answer that came back there was hundreds and hundreds of thousands from one exchange, which is a really small exchange. What did that tell the IRS and what do you think that means for crypto holders?

Jan

I think that the IRS will probably expend a lot of resources in going after those individuals that have invested in crypto and not reported it because it really means a steady supply of income to the Internal Revenue Service in the form of penalties and interest for the failure to comply with the code.

Neil

And it’s pretty easy for them to get that information now, isn’t it?

Jan

The IRS will use FATCA and any other means at its disposal to obtain that information from platforms all over the world. The idea that crypto is somehow going to be secret is really no longer even in the mainstream in order to regulate it, which is what’s going to happen in the United States, in China, in Europe, virtually all over the world. All countries are interested in the regulation of the cryptocurrency because not only in the United States are their tax dollars being lost, but in the rest of the world as well.

Neil

And so when the rest of the world joined FATCA that brought down Swiss bank accounts that brought down investments in the Cayman Islands, how would anyone holding crypto think that’s not going to be true of crypto exchanges?

Jan

Well, funny, but people still think that somehow crypto is secret, but the fact of the matter is it’s not. And the fact of the matter is, we as Americans still have an obligation to go back and be truthful in the tax returns that we file. And so our office’s perspective is that we can do everything in our power to align what it is that’s required by the IRS and what it is that our clients are doing as well.

Neil

So the real life lesson not to be repeated here is it’s really not a matter of if is it?

Jan

It’s a matter of when.

Neil

So Jan, let’s shift the conversation back here to the United States and some of the hard decisions that taxpayers and business people, and in some cases employers have to make real life decisions. Can you gimme an example of a real life conundrum that a business owner might face and how Alan Barron can help them through those decisions?

Jan

Yeah, I think the best example of that is a, an example that I give when I’m interviewing associate attorneys for positions in this office. And the fact pattern is this, the client has the ability to go back and has enough money in the bank to either pay the sales tax to the C D T F A here in California or pay the vendors with which to keep the business open. And when I pose that conundrum to the associate attorneys and I say to them, which do you think the client should choose? Inevitably, perhaps because they’re attorneys or perhaps because they think that that’s the answer that I’m looking for, they indicate that they feel that the client should go back and pay the pay the taxes, the sales tax. Not that I’m opposed to paying sales tax, I want to make that absolutely clear. But the issue is sometimes businesses find themselves in a position where through no fault of their own, there is not enough money to go back and do both.

So the position that this particular client found themselves in was they could either make the sales tax deposit that was required, which is required on a quarterly basis, or they would, and if they did that, they would fail to pay their vendors. And if they failed to pay their vendors and there would be no more product to sell. In this particular instance, this client had over 33 employees. It would mean laying off 33 people closing the doors in order to meet the sales tax obligation. When that client walked into my office, my position was no, I felt that we would go back and we could set up a payment plan as long as the client felt that they were doing well enough financially that we could go back in and make additional payments to the sales tax, that we could go back and set up the sales tax installment agreement and have the payments extended out over a period of time that would allow the business to be able to recover and grow.

And that’s exactly what happened. I’ve had another client that did essentially the same thing. Only, it wasn’t sales tax, it was payroll tax, the same thing ended up occurring. So what I want people to take away is there are ways to get around what seem to be absolutely immovable issues as it relates to taxes with either a state or federal regulating body. Because oftentimes we find that the IRS, the FTB, the C D T F A are willing to work with individuals as long as they understand that compliance is something that needs to be adhered to. But they recognize too that there are times that businesses simply find themselves in a bind and there have to be solutions other than shutting down the business.

Neil

And another corollary lesson is how do the agencies, federal and state, look at a taxpayer or entity that’s working with them as opposed to someone who’s not?

Jan

Well, I think the taxing authorities are always looking for compliance. The degree of compliance is either willingness to work with the taxing authorities or trying to hide. And I think it’s the individuals that are trying to hide are the ones that find themselves in the most precarious positions because again, the idea that we should be afraid of these taxing regulatory bodies is really obsolete. There are always solutions to issues. The question is how can you put together an effective solution utilizing what it is that the client has and meeting the goals of the taxing authorities as well.

Neil

And in many of these cases, the clients may not simply realize that there are options and the hopelessness and inaction comes out of not knowing that there are options. Isn’t that the advantage of a free consult with Jan Allen so that they can talk about what’s going on and she can help them figure out what the best path forward is about?

Jan

Yeah, that’s precisely the reason we go back and we have free consultations, is to go back and discuss these issues and recognize that it may not be as black and white as people first presume.

Neil

Jan, from a personal point of view, I could tell you probably one of the greatest life lessons not to be repeated is to underestimate the importance and value of accounting, which I think is a pretty common business issue, don’t you?

Jan

Yes. And it’s really, I think, one of the most overlooked issues in business. I think people presume that because they can turn on a computer and download something like QuickBooks, that somehow they have financial statements and that’s really not the case. And I’ll give you a quick example. My own daughter-in-law has a bookkeeper for her business, and a couple of years ago during covid, everybody was getting P P P loans and that particular bookkeeper not understanding accounting went back and booked it as income. So when we realized that what was going to happen was that those P P P loans were not going to be taxed in California or in at the federal level, it took California a couple of months to catch up with the feds. But the presumption always was that those P P P loans would not be taxable. The proper way to go back and book those was via a liability.

So you would debit cash and credit a liability Instead, what was credited was income. And when my daughter-in-law came in when we were doing some tax planning, she absolutely freaked out because she didn’t understand how She’d made quite so much money when in fact, when she goes back and she looked at her bank account, she says, you know, I have this loan that I think I’m going to have to pay back. So when you’re doing financial statements, it’s really critically important that you have someone that understands how it is the underlying accounting and gap accounting actually works because the ability to go back and affect changes on financial statements just by reviewing them, becomes of critical importance because those financial statements underlie the tax returns on which you’re reporting to the Internal Revenue Service. So my goal when I have a client that comes in and I have our firm has not done the accounting, is to review the accounting because oftentimes I could spot issues within the accounting itself that can save the client hundreds if not tens of thousands of dollars.

I think one of the best examples that I can think of from a business perspective is when businesses go back and they have obsolete inventory and they need to write it off. And a lot of accountants don’t know how to do that. And so it’s those types of instances where you can make a change in the underlying financial statements based on gap and based on tax in order to save the client’s money. In terms of lower taxes, one of the ways that we can assist in that endeavor is to review the financial statements on a monthly, quarterly, or even a yearly basis because it’s that review of the underlying accounting that can go back and save the taxpayer dollars prior to even completing a tax return. So it’s one of the services that we provide that I encourage all clients who have a business and who have a set of books and don’t have a, a CPA or a professional that are reviewing them to take advantage of.

Neil

Jan, one of the things I hear you counsel me about and many of our clients about is it’s not only how you realize income, it’s when, and there are strategies to affect how, where and when you realize income.

Jan

Well sure. A large part of tax planning has to do with when something is realized and when it becomes reportable. And that can be altered by the choice of entity that someone goes back and uses. So for example, limited liability companies, s-corps, and individuals are all required to report their financial statements, their financial information on a calendar year basis, but not a C corporation. If there’s a business reason, for example, if there is a normal business cycle that is something other than a calendar year, then we’re allowed to choose what’s known as the fiscal year end. And by reporting on a fiscal year end and the overlap of an individual, what the calendar year end, you can create tax planning strategies that will either accelerate expenses, deaccelerate income, or accelerate both depending on the need of the individual and the company simply based on timing. So there’s a number of strategies that can evolve simply by the utilization of several types of different entities. And the C corporation, although lots of people are afraid of the formality of a C corporation, really can go back and affect some dramatic tax reductions simply based on the fact that you’re using a different type of entity and a different fiscal year,

Neil

Or simply the ability to move a substantial amount of income from one year to the next, which delays the tax payment on that by 16 months.

Jan

It can, the 16 months comes from the length of time that the overlap from the December 31st occurs along with the extensions. But yes, that’s exactly correct.

Neil

So what we’re talking about here is transactional planning.

Jan

It is, transactional planning is an amalgamation of choice of entity types of income. Who holds an entity. So for example, if you have a limited liability company and you don’t want it to be not a disregarded entity for tax purposes, then you may want to set up a corporation as one of the members of an LLC along with other individuals in order to go back and affect differing types of income coming from those entities. And then going back and essentially changing status of the income that may go into, for example, a corporation and flow through as passive income to become active income. That allows us then to use the traditional tax tools for deferral of income, such as a 401K or SEP IRA. But it’s all of these differing types of inputs that you can go back and mix and match in order to create the best, most tax efficient regime for the individual and their businesses.

Neil

So the real life lesson to be repeated here, is to gain an understanding of PIGs and PALs.

Jan

PIGs and PALs are one of my favorites things to talk about. And I’ve spoken to a number of real estate groups here locally in the area, and real estate agents in particular because they’re dealing in real estate, and of course pigs and pals are really coming out of the passive income since the IRS code regulates passive income, real estate income and deems it to be passive. So PIGs are Passive Income Generators and PALs are Passive Activity Losses, and it’s the combining of those two that leads to a lower income. But it’s the way that that’s structured and how it comes together, that really allows us to utilize the concept of PIGs and PALs in order to reduce taxes.

Neil

So the life lesson to not be repeated is to keep your head in the sand and just plow forward and make the money. The life lesson to apply here is with a little bit of planning, you can really accomplish a lot in terms of how much money you get to keep in hip pocket National Bank.

Jan

That’s exactly right.

Neil

Jan, we’ve talked about a lot of real life lessons, not to be repeated. What’s the one life lesson you would most like our listeners to keep in their mind?

Jan

I think the most important thing for people to recognize is that it’s okay to ask questions, that it’s far better to be prepared and to understand what’s happening than to hide from reality. And the easiest way to do that is to pick up the phone and call. Our office will be more than happy to talk to you, to go through the issues and the discussions that can lead to solutions that will go back to assist people in whatever issues that they’re having.

Neil

To have the information. And it’s a free initial conversation.

Jan

It is.

Neil

Thank you, Jan

Jan

Learn more about our integrated legal tax, accounting and business solutions and visit https://allenbarron.com or call (866) 631-3470 to schedule a free consultation.

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