Unlike a C corporation, which itself pays the tax on its taxable income, an S corporation does not directly pay taxes on its income; instead, its income, losses, deductions, and credits flow through to its shareholders’ individual tax returns on a pro rata basis. These distributions are not subject to self-employment (Social Security and Medicare) taxes. As a result, many S corporations ignore the requirement that each shareholder-employee must take reasonable compensation in the form of W-2 wages in exchange for services performed for the corporation. These wages are subject to Social Security and Medicare taxes (which the corporation and the employee generally split equally); the corporation is also responsible for paying the Federal Unemployment Tax (as well as any state unemployment taxes).

The Internal Revenue Code establishes that an officer of an S corporation is an employee of that corporation for Federal Unemployment Tax purposes. S corporations should not attempt to avoid paying this tax by treating their officers’ compensation as distributions rather than as wages.

This has been an issue for decades; in 1974, the IRS issued a ruling stating that, when a shareholder-employee fails to take a salary, or if that salary is unreasonable, an auditor should assert that the salary is unreasonable. The officer’s distributions will then be shifted to account for reasonable compensation, and he or she will be assessed the related employment taxes and penalties. At stake here are the employee’s 6.2% Social Security and 1.45% Medicare payroll taxes, the S corporation’s matching amounts, the Federal Unemployment Tax, and whatever state taxes happen to apply.

Who Is an Employee of the Corporation? – Generally, an officer of a corporation is considered an employee of that corporation. The fact that an officer is also a shareholder does not change the requirement that any payments made to that officer must be treated as wages. Courts have consistently held that S corporation shareholders who provide more than minor services to their corporation (and receive payment in return) are employees whose compensation is subject to federal taxes.

Tax regulations do provide an exception for officers who do not perform services or who perform only minor services. These officers are not considered employees.

What’s a Reasonable Salary? – The instructions for Form 1120S (“U.S. Income Tax Return for an S Corporation”) state: “Distributions and other payments by an S corporation to a corporate officer must be treated as wages to the extent the amounts are reasonable compensation for services rendered to the corporation.” There are no specific guidelines in the tax code regarding the definition of reasonable compensation. The various courts that have ruled on this issue have based their determinations on the facts and circumstances of the individual cases. These are some factors that courts have considered when determining reasonable compensation:

• The officer’s training and experience
• The officer’s duties and responsibilities
• The time and effort that the officer devotes to the business
• The corporation’s dividend history
• The corporation’s payments to non-shareholder employees
• The timing and manner of the bonuses paid to key people at the corporation
• The payments that comparable businesses have made for similar services
• The corporation’s compensation agreements
• The formulas that similar corporations have used to determine compensation

The problem here, of course, is that it is easy for the IRS to simply list contributing factors that courts have used when determining reasonable compensation and leave it to each corporation to quantify these factors and determine a reasonable salary—all while retaining the ability to challenge the selected amount later if an auditor decides that the compensation is not reasonable. The IRS has a long history of examining S corporations’ tax returns to ensure that reasonable compensation is being paid, particularly when a corporation pays no compensation to employee-stockholders.

199A Deduction Issue – A few years back Congress added a flow-through deduction (also referred to as the “199A deduction” after the section of the tax code that describes it). This deduction applies to S corporations (among many other business entities) and added another level of complexity to the determination of reasonable compensation.

• The wages of an S corporation’s employee-stockholder are NOT treated as qualified business income (QBI) that is eligible for the individual’s 199A deduction. However, the corporation deducts these wages as a business expense when it calculates the profit that passes through to the shareholder as QBI on Schedule K-1. Thus, larger wages mean less K-1 flow-through income (QBI) and thus a smaller 199A deduction (as that is equal to 20% of QBI). In these situations, S corporations tend to minimize stockholders’ salaries to maximize flow-through income; this strategy increases the employee-stockholder’s 199A deduction and lowers the payroll taxes for both the corporation and the employee-stockholder.
• If married taxpayers who are filing a joint return in 2022 have 1040 taxable income that exceeds $340,100 (or $170,050 for those with other filing statuses), the 199A deduction begins to be subject to a wage limitation. Once the 1040 taxable income for married taxpayers filing jointly exceeds $440,100 (or $220,050 for those with other filing statuses), the wage limitation is fully phased in. In that event, the 199A deduction becomes the lesser of the wage limitation or 20% of the QBI; if the wage limitation is zero, there is no 199A deduction. These phasing amounts are inflation adjusted annually.

  The wage limitation comprises the wages that the corporation paid, including those paid to stockholders, plus the unadjusted cost of the qualified property that the corporation owned and used during the year. To be more specific, the wage limitation is the larger of

• 50% of the wages that the corporation paid to all its employees or
• 25% of the corporation’s paid wages plus 2.5% of the unadjusted cost of its qualified property.

  Thus, for those high-income shareholders for whom the wage limitation applies, if the corporation pays no wages and has no qualified property, the shareholder will not have a 199A deduction.

  If an S corporation is a specified service trade or business, the 199A deduction phases out; for married taxpayers who are filing a joint return, it phases out at taxable incomes between $340,100 and $440,100 (for those with other filing statuses, it phases out between $170,050 and $220,050). The IRS describes specified service trades or businesses as those in the fields of health, law, accounting, actuarial science, performing arts, athletics, consulting, financial services, and brokerage services, as well as those for which reputation and/or skill are contributing factors (for more details on what constitutes a specified service trade or business, please give this office a call).

  Thus, if married taxpayers who are filing jointly for 2022 have taxable income more than $440,100 (or $220,050 for those with other filing statuses), they receive no benefit from the wage limitation; therefore, they also tend to minimize their reasonable compensation in order to minimize their FICA taxes.

Of course, taxpayers cannot pick and choose a particular level of reasonable compensation to minimize their taxes or maximize their deductions; therein lies a trap. Taxpayers instead should consider all the factors related to reasonable compensation. However, pulling all the data together to support such a determination can be difficult and time-consuming. Some commercial firms have the necessary data and resources to properly apply the various factors mentioned in this article to determine the proper level of reasonable compensation; this can provide backup in the case of an IRS challenge.

Please give our office a call if you have questions related to reasonable compensation for S corporation shareholders or how it impacts your specific tax situation.

Not too long ago in Orlando, Florida, a federal investigation uncovered a situation where 22 workers were denied overtime by a Florida-based equipment rental company. The company was paying flat salaries to certain employees, regardless of how many hours they worked in a given week. It was revealed that they were doing this in an attempt to skirt the overtime requirement of the Fair Labor and Standards Act.

The rental company quickly learned that just because you pay someone a salary doesn’t mean you can avoid these types of laws. The government recovered $122,000 in back wages and damages for those employees as a result of this improper classification of their employment status.

Why Employee Classification Matters

Situations like these highlight the importance of classifying employees correctly from the start. Whenever this topic comes up, most people think about the differences between independent contractors and actual workers employed by a business. But as you can see from the example above, there are many other parts to this discussion as well.

Ultimately, it all comes down to the difference between salary and hourly pay employees. Salaried employees are typically those who receive a specific wage, with the understanding that they are going to keep up with all of their stated responsibilities. Sometimes, this means working more than 40 hours a week in exchange for that salary.

Hourly employees are treated a bit differently, however. Here, the expectation is that they will work a standard 40 hours per week, every week, except for any vacation time they may have accrued. In the event that a project or responsibility takes them over 40 hours per week, they are entitled to time and a half for each hour they go beyond.

There are a few major reasons why someone might prefer a salaried position over an hourly one. No, they aren’t going to receive overtime pay like their hourly employees – but they do have access to certain benefits that their counterparts don’t.

A salaried employee gets a check for the same amount of money each payday. This makes it far easier to budget than if their hours were uncertain. Provided that they keep up with their duties, that number will not change throughout the year. Being salaried also comes with a certain sense of security because while employers may cut someone’s hours, that salary is still more or less locked into place.

Hourly employees are equally as straightforward but in a different way. In an hourly position, you are paid for all of the hours you work – no more, no less. Overtime and things like holiday pay are certainly a bonus and can help people earn extra income.

Being an hourly employee does also lack the job security that a salaried position comes with. You may not outright lose your position, but an employer could significantly cut back on hours – impacting your take-home pay as well.

There are, however, certain situations where salaried employees will get overtime – as that organization in Florida recently had to learn the hard way. Unless a salaried employee is completing a task that is exempted, they must receive overtime pay if they are covered by the FLSA. According to the FLSA, some job categories that are considered exempt include those operating in professional capacities, in administrative roles, executives, outside sales personnel, and computer-related positions.

In the end, it’s more important than ever to properly classify the employment status of your workers – if only to avoid a potentially catastrophic situation later on (like via a run-in with the federal government).

New regulations regarding financial reporting for American businesses operating both domestically and overseas will soon go into effect.

In 2021, Congress passed the Corporate Transparency Act (CTA), which is a piece of legislation aimed at monitoring potential money laundering and other illicit activities. Businesses subject to the CTA will be required to provide information to the Financial Crimes Enforcement Network (FinCEN), an arm of the Department of the Treasury. The CTA requires the filing of a “beneficial owner report,” which furnishes key information about each beneficial owner of the business: full legal name, date of birth, residential street address, and identifying numbers from legal documents (e.g., driver’s license or passport). Failure to furnish the information required by the CTA can result in hefty penalties and even imprisonment.

Recently, FinCEN issued proposed regulations that include the following details:

1. The CTA will go into effect upon finalization of the FinCEN regulations, which is expected to occur sometime in 2022.
2. The CTA reporting requirements will apply to the majority of small businesses, including corporations, limited liability companies (LLCs), limited partnerships, limited liability partnerships, limited liability limited partnerships, and business trusts. Sole proprietorships and general partnerships are not subject to the CTA, and companies with more than 20 full-time employees and $5 million in gross receipts are also exempt.
3. A “beneficial owner” is someone who own 25% or more of the company and who exercises substantial control over the company, either directly or indirectly.

Our accounting advisors are working diligently to remain up to date on new developments regarding the CTA and FinCEN reporting requirements. You can be confident that we will keep you apprised of the situation. Please do not hesitate to reach out with any questions or concerns.

This article explains some tax-avoiding strategies that the IRS will be flagging down. Some strategies include “concealing assets in offshore accounts and improper reporting of digital assets, non-filing of income tax returns by high-income individuals, abusive syndicated conservation easements, and abusive micro captive insurance arrangements.” The article proceeds to categorize other sources of taxable income, all of which the IRS will punish if found to be abused.

To view this article, click here to access the original content.

Are you familiar with 401(k) retirement funds?

More and more employers are offering 401(k) plans as an employee benefit, and if you have the option and are not currently taking advantage of it, it may be time to rethink your savings strategy. Not only do these popular plans offer the advantage of using pre-tax dollars (and thus lowering your taxable income each year), but they are also a simple way to ensure that you’re putting away money regularly, without having to give it a thought once you’ve set up the plan.

Employers can sign you up automatically in the 401(k) plan that they offer, but even if you have to opt into a plan, once you’ve done so the amount that you’ve elected will automatically be deducted from your paycheck and deposited into your retirement savings account. All you have to do is decide how much you want to set aside each week. The answer to that question is entirely up to you and should be based on what your goals are, as well as variables like your living expenses and your age.

The closer you are to retirement age, the less time you have to save so you may want to bump up the amount that you deposit. Because the money that you invest will compound, the sooner you start investing the better. To give you an idea of how money can grow, consider the difference between investing $3,000 a year at an 8% annual return for 30 years – which would add up to $340,856 – versus only saving for 20 years, which would leave you with just $137,752. You also need to keep in mind that there is an annual maximum amount that you are permitted to contribute. Fortunately, that number increases each year. For 2022, the limit is $20,500.

You’ll also want to consider whether your employer offers a match, and if so how much that match is. One of the advantages of the 401(k) type of account is that employers can match all or a portion of your contribution, but you need to make sure that you understand exactly how your individual program works. Some employers will only offer a match up to a certain point, and others will only match if you opt for a minimum percentage of your income. Most experts encourage employees to make sure that they are fully taking advantage of whatever match their employer is willing to contribute.

To give you a sense of how much the average American has in their 401(k) account, consider the results of a recent survey conducted by Vanguard. It showed that those between the ages of 45 and 54 have an average 401(k) balance of $161,079 (median $56,722), while those who are between the ages of 55 and 64 have saved an average of $232,379 (median $84,714). The group that is closest to retirement – those who are 65 and older – do not have that much more than the group closest to them in age: they have an average 401(k) balance of $255,151 with a median of $82,297.

When thinking about your retirement and how you’ll fund your lifestyle, one of the most important questions you need to answer is exactly how you’re hoping to spend your golden years. If you plan to spend your time at home with family, you will need less than someone who plans world travel.

If you don’t have access to a 401(k) account, a Roth IRA is another good option. Though the contributions that you make come from after-tax dollars, you are able to withdraw them and their earnings tax-free at any point after you turn 59 ½. The annual limit that you can contribute to a Roth IRA is currently only $6,000, which is much lower than the $20,500 allowed each year for the 401(k) accounts.

It’s never too early to start saving for retirement, and there are plenty of good options available. If you need guidance on how best to save, contact us today to set up a time to discuss your situation.