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TAXPRO
2
Government News & Views

Issue 9 Volume 34 September 2013

Health Care Reform: Keeping up with the changes

How To

Tax Planning With Energy Credits

14

Tax 101

Defining Dealer, Trader, Investor

Overpayment Interest Application

IRS gets to choose

By Becky Van Kauwenberg

ccording to a recent program manager technical assistance (PMTA) the Chief Counsel issued, the IRS has the discretion to determine how overpayment interest is applied to payments of a tax liability on the same date. As such the IRS can apply the payments in a way that provides the taxpayer with less overpayment interest on money because different rates apply to different types of payments. Good for the IRS; bad for the taxpayer. The PMTA is upholding a District Courts conclusion in 2010 that this situation is not addressed in any Internal Revenue Code section, Treasury Regulations or Rev. Proc. 2005-18. The District Court could

find no reason why the IRS could not choose which order of payments to use given the lack of authoritative material requiring the IRS to apply the payments in a specific manner. To illustrate how this affects a taxpayer, the PMTA sets forth a scenario that is summarized in the following paragraphs. To review, under 6402(a), the IRS can apply an overpayment in a taxable year to any unpaid liability the taxpayer may have. Section 6621(a)(1) states interest on overpayments is paid at the overpayment rate, which is the Federal short-term rate plus three percentage points (two percentage points or a half of a percentage point if the overpayment is in excess of $10,000

for corporations). This interest begins accruing on the date of the overpayment, which occurs when all of the payments exceed the correct tax for the year [Reg. 301.6611-1(b)]. A taxpayer also has the option of making a deposit to pay any disputable tax that has not been assessed by the IRS [6603(a)]. This deposit becomes a payment upon the completion of an examination. This disputable tax amount, as a safe harbor, is generally associated with the 30-day letter, which is the IRSs first proposed deficiency letter given to a taxpayer [6603(d)(2)(B)]. Interest on this deposit is only the Federal short-term rate, compounded daily and begins
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GOVERNMENT NEWS & VIEWS

Health Care Reform

Keeping up with the changes

e have a saying here in Wisconsin: If you dont like the weather, wait five minutes and itll change. The same can be said for the Affordable Care Act (ACA). It seems that the moment guidance is issued something gets repealed, delayed, clarified or changed. Its getting more difficult to keep up with all the changes unless youre wired directly into the minds of Congress and the IRS. However, NATP can fill in the gaps and keep you up-to-date.

By Cindy Hockenberry, EA

What We Know
The ACA is massiveso massive in fact that it is taking several years to fully implement. Or, if some in Congress have their way, it will be completely repealed. Whatever takes place, its important to be aware of the timeline so you can properly prepare your clients. Parts of the legislation have already become effective. For instance, contributions to flexible spending arrangements are limited to $2,500 annually in 2013. Also for 2013, the AGI threshold for deducting medical expenses on Schedule A increases from 7.5% to 10% for those taxpayers under the age of 65. The increased threshold doesnt kick in for taxpayers age 65 and over until 2017. The net investment income tax kicks in for higher income taxpayers, as does the additional hospital insurance withholding. As it stands now, the IRS has not delayed the individual mandate to acquire health insurance. If taxpayers are not provided insurance 2 through an employer, they can purchase it through an exchange. The open enrollment period to purchase health care coverage through the new Health Insurance Marketplace begins October 1, 2013. Taxpayers who get health insurance through the marketplace may be able to get the new advanced Premium Tax Credit that will immediately help lower monthly premiums. There are many states that are creating their own exchanges; others are relying on the federal government to provide them. transitional relief still applies. Theres a lot of talk in Congress about delaying the individual mandate, but we dont know if it will actually happen. The employer mandate has already been delayed one year and now becomes effective in 2015. The reason for the delay was the lack of guidance, the complexity of the law and the fact that business owners needed more time to make arrangements to comply with all the requirements. The same can be argued for individuals. In fact, many experts are predicting the exchanges wont be ready by the October enrollment date. Individuals who do not obtain health insurance by January 1, 2014, will be subject to a penalty, which we now know is really an additional tax. This tax is computed as either a flat amount or a percentage of household income. The definition of household income remains a bit of a mystery. The law

What We Dont Know

For 2012, the IRS issued transitional relief to employers who issue 250 or more Forms W-2 from reporting the cost of employer-sponsored health insurance coverage in Box 14. At this point we dont know if that relief will be granted for 2013 W-2s. Until we have further guidance from the IRS, we can assume that the

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states that household income is the taxpayers modified adjusted gross income (MAGI), plus the aggregate MAGI of all other individuals who are taken into account in determining the taxpayers family who are also required to file an income tax return for the year. Family means the individuals for whom a taxpayer properly claims a personal exemption deduction under 151 for a tax year. Does this mean that you will now have to ask your clients who claim parents as dependents to obtain their parents tax information? What if the parents are in a different state? It would seem reasonable to assume that this is not what the law intended; however, its right there in the statute. Until further guidance is issued, we have nothing else to go on. What if a dependent is not required per se to file a return but does so only to get a refund of withheld tax?

employees. A large employer is defined as one that employs at least 50 full-time and full-time equivalent employees. This determination is made based on the number of hours an employee works. Full time is defined as 30 hours per week not 40 as we have all adapted. Of course that too can change. There are penalties that will be assessed on employers and individuals who do not comply with the health care law. The law refers to this penalty as the shared responsibility penalty. Whether its a penalty or a tax, employers who do not offer insurance, or offer insurance that is not affordable, will have to work their way through a maze of calculations to arrive at the correct penalty amount. Individuals who do not obtain health insurance face the same complexities with amounts that change in the future.

Tools For You Compliance Complexities

One of the more sticky requirements of the employer mandate is determining whether the employer is even required to offer health insurance. As the law is written, only large employers are required to offer health insurance to their NATP realizes that complying with the rules and staying current is difficult at best. To assist you, we have created a website filled with resources, education and FAQs that specifically address the ACA. Included on the page are links to a worksheet you can use to calculate

the number of full-time employees, applications for health coverage, links to government websites and numerous articles that we have published on this topic. Your role as a tax professional is to guide your clients through the regulations and inform them of the pitfalls for failing to comply. You will most likely need to add some additional questions to your interview checklist to ensure you have all the information necessary to properly compute any required penalties. In some states, you dont need to be a licensed insurance broker in order to assist your clients with finding the insurance that best fits their circumstances. In other states, however, tax preparers who wish to sell, solicit and/or negotiate insurance must get a license. Alternatively, tax preparers can refer their clients to a licensed insurance broker. To help you figure out what is allowed or not allowed in your state, we have compiled a list of the state requirements, complete with a link to the state regulatory agency. All the resources that are available to you are on NATPs website at natptax.com under the Tax Knowledge Center tab.

Applicable Federal Rates for August 2013

Annual Short-term Revenue Ruling 2013-13
(3 years or less)

Semiannual .28 1.62 3.14

Quarterly .28 1.62 3.13

Monthly .28 1.61 3.12

3

.28 1.63 3.16

September 2013

Mid-term Long-term
(More than 9 years)

August 7520 rate = 2.0%; 2013 blended annual rate = .22%

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TAX TALK

Overpayment Interest Application continued from page 1

$40,000 and applied an overpayment of tax from the 2011 taxable year of $60,000. The application of the 2011 overpayment combined with the deposit of $60,000, created an $80,000 overpayment for 2010. The taxpayer asked for a refund of the remaining amount. From this set of facts, the IRS has two options for calculating the overpayment interest owed to the taxpayer. (1) The IRS can deem the $40,000 tax liability to be satisfied by the $60,000 overpayment from the 2011 taxable year, which would leave the taxpayers refund to consist of $20,000 from the overpayment and $60,000 from the deposit. The $20,000 receives interest at a rate of the Federal short-term rate plus three percentage points (a half of a percentage point for corporations). The $60,000 deposit receives interest at a rate of the Federal short-term rate, compounded daily. Interest would begin accruing on April 17, 2012, to a date not more than 30 days before the date of the refund check. (2) The IRS can deem the $40,000 tax liability to be satisfied by the $60,000 from the deposit, which would leave the taxpayers refund to consist of $20,000 from the deposit and $60,000 from the 2011 taxable year overpayment. This option provides the taxpayer a higher interest rate on a greater amount for the accrual period. Obviously #2 is the best option for the taxpayer; unfortunately, the IRS makes the choice.

accruing once determined to be a payment (i.e., upon completion of an examination). According to Reg. 301.6611-1(g) interest accrues until 30 days before the date of the refund check. On May 2, 2011, a taxpayer received a 30-day letter from the IRS notifying him that a tax liability of $100,000 was due for the 2010 taxable year. Ten days later, the taxpayer provided the IRS with a deposit for that liability in the amount of $60,000. After completion of the examination on February 9, 2012, the IRS determined the taxpayer was actually liable for $40,000 for the 2010 taxable year. On April 9, 2012, the taxpayer agreed with the IRS by signing a waiver of restrictions on assessment and collection. On April 17, 2012, the IRS assessed the

ACA and Undocumented Workers

By Erik Lammert, J.D. (A) In the case of an enrollee whose eligibility is based on an attestation of citizenship of the enrollee, the enrollees social security number. (B) In the case of an individual whose eligibility is based on an attestation of the enrollees immigration status, the enrollees social security number (if applicable) and such identifying information with respect to the enrollees immigration status as the Secretary, after consultation with the Secretary of Homeland Security, determines appropriate.

Internet rumors would have you believe that the new health care law will force employers to provide health insurance benefits to undocumented workers. Section 1411 of the Affordable Care Act (ACA) specifically excludes people who are in our country illegally from receiving any benefits.
Sec. 1411. Procedures for determining eligibility for exchange participation, premium tax credits and reduced cost-sharing, and individual responsibility exemptions. (1) IN GENERAL. An applicant for enrollment in a qualified health plan offered through an Exchange in the individual market shall provide: (A) The name, address, and date of birth of each individual who is to be covered by the plan (in this subsection referred to as an enrollee); and (B) The information required by any of the following paragraphs that is applicable to an enrollee. (2) CITIZENSHIP OR IMMIGRATION STATUS. The following information shall be provided with respect to every enrollee:

Nothing in the ACA rules allow federal payments or credits for individuals who arent lawfully present in the U.S. [Sec. 1412(d), PL 111-148, 3/23/2010. Joint Committee Staff, Tech Explanation of the Revenue Provisions of the Reconciliation Act of 2010, as Amended, in Combination With the Patient Protection and Affordable Care Act (JCX-18-10), 3/21/2010, p. 12, 22]. The ACA specifically states in 1411 that before an individual is eligible to benefit from the new system, they have to be able to prove their legal citizenship or immigration status.

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TAX TALK

Payments to Bank Trustee

Non-employee compensation subject to self-employment tax
By Kevin Brown, EA

ts been well established that employees are not subject to self-employment tax and independent contractors are. Employees pay their share of FICA and Medicare through withholding, while independent contractors pay their share and the employers share on Schedule SE. Whether a taxpayer is an employee or independent contractor is a matter of fact. The IRS offers tests that can be used to assist in determining this status. Richard Blodgett was a mining engineer in Connecticut. He was also president of the local Rotary Club and served on the board of directors for the group. In 1977, one of the other members of the Rotary Club, who happened to be the president of Groton Savings Bank, contacted Blodgett to offer him a position on the board of trustees at the bank. The bank president was impressed by Blodgetts work with the Rotary Club. Blodgett accepted the offer and was elected as a corporator and trustee of the bank on February 17, 1977. The job duties of a corporator are to oversee the actions of the board of trustees, establish bank bylaws that meet the bank charter, as well as Federal and State laws, and elect other corporators, trustees and bank officers. Corporators cannot be removed by the bank management and are only dismissed if they miss three consecutive annual meetings. Each corporator is paid a fee for the meetings; the fee is set by the board of trustees.

Bank trustees must also be corporators. The trustee has a duty to work in the best interest of the bank. The trustees are required to meet monthly, but more often if needed. The trustees work separate from the management of the bank and are not involved with the dayto-day operations of the bank. The trustees approve the banks strategic vision, strategy and policies of the bank, supervise management, establish trustee committees and sign confidentiality agreements. The trustees are compensated based on a fixed retainer and then for special duties and meetings. In 2009 and 2010, the trustees were paid $850 per month in retainer, $1,000 for board meetings, $1,300 for lead director board meetings, $1,100 for secretary board meetings, and $800 for committee meetings. The bank also provided the board of trustees with continuing education so they could stay current with the Federal and State banking laws. It also provided life insurance, disability insurance, a retirement plan, and indemnification and reimbursement for reasonable expenses incurred for lawsuits involving the bank. Blodgett was elected as a trustee every three years from 1977 until August 5, 2011, when he retired. Before retirement, he averaged 20 hours per month attending meetings and serving on various committees. He did not hold himself out as a contractor to any other person, bank or organization. Blodgett did not claim a deduction for business

expenses related to his trustee position as the bank paid them. He did not receive any financial services from the bank. For 2008, the year at issue, Blodgett received a 1099-MISC reporting non-employee compensation of $26,750 for his trustee services. While Blodgett did report this income on Line 21 of his 2008 Form 1040, he did not include the amount on Schedule SE. Blodgett disputed the selfemployment tax in the IRS notice of deficiency. He argued that he was an employee of the bank, not
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HOW TO

Energy Credits
Tax planning with 25C and 25D
By Kevin Brown, EA

tarting with the Energy and Transportation Act of 2005, individual taxpayers have been provided various tax credits over the years for making energy efficient improvements to their residences. This law enacted two separate credits: the nonbusiness energy property credit (25C) and the residential energy efficient property credit (25D). Since 2006, these credits have been extended and modified several times to their current status in 2013. The chart on page 7 summarizes and compares the provisions of each credit. Tax preparers have a significant opportunity to initiate tax planning with clients who are interested in making energy efficient improvements to their homes. However, often times we do not get

the opportunity because our clients do not communicate their plans with us or we are not proactive in assisting the client through this process. Lack of planning can lead to unexpected results, as well as unhappy clients who insist they deserve the credit that their salesman told them they should receive. Often we are left in a position of having to explain the tax law and why the credit is limited. Its our job to remind clients throughout the tax year that we are here to advise them of the tax consequences of their decisions. These reminders could be as simple as a quarterly update on current tax laws or perhaps NATPs Tax Tips client newsletters, which come out in summer and winter. Following is an example of a married couple who did not seek the advice of their tax professional. Example: Tim and Amy Green just retired in 2012 at ages 63 and 62 respectively. Tim receives a pension from his former employer of $17,800 annually, as well as $16,800 in Social Security benefits. Amy receives periodic distributions from her 401(k), which totaled $12,500 in 2012. She also receives Social Security benefits of $12,400 annually. In addition, Tim and Amy have investment income in the form of interest and ordinary dividends, which totaled $900 and $3,400 respectively in 2012. The Greens no longer have a mortgage on their principal residence or on their lake home.

Their only itemized deductions are real estate taxes and charitable contributions. They have not claimed itemized deductions for the last eight tax years. With the rising cost of energy, the Greens decided to investigate more efficient ways to heat and cool their two homes. After a trip to their local home show in April, they decided a wood pellet stove would be perfect for their principal residence and a geothermal system would be the most efficient way to heat and cool the lake home. In May 2012, the Greens purchased a wood pellet stove for their home and paid a total of $3,750, including installation. The manufacturer certified that the stove met all of the requirements for the nonbusiness energy property credit. The Greens also contacted a salesman from the home show regarding a geothermal system for their lake home. The salesman told the couple that they could receive a 30% tax credit for a system that would fit their needs for the lake home. In June 2012, the Greens put $1,000 down on a system that was fully installed in August 2012. The remaining $55,500 of the purchase price was paid with a home equity loan the Greens took out on their principal residence. The taxpayers had never claimed a credit for energy improvements in the past. The Greens are allowed to take a credit of $300 for the wood pellet stove and $16,950 for the geothermal system on their Form 5695 (see page 8).

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HOW TO
Despite having $17,250 in tax credits from their energy efficient property purchases, Tim and Amy can only use $2,959 in the 2012 tax year due to the tax limitation imposed on the nonrefundable credit. The full $300 credit from the wood pellet stove is used in the current year, as well as $2,659 of the residential energy efficient property credit from the geothermal system. Thankfully, the remaining residential energy efficient property credit of $14,291 can be carried forward. At this point, the credit expires as of December 31, 2016. If the credit is not used, the Greens will lose any remaining credit. If the Greens income remains the same, they will not be able to fully absorb the remaining credit and will lose roughly $2,000 of credit. Had the Greens consulted their tax preparer, they could have looked to increase their income for the current year, or taken a smaller second mortgage by utilizing more of Amys 401(k). They were expecting the full credit on the 2012 return, not $2,959 (see page 9). Remember, when talking to your clients regarding potential tax benefits and pitfalls, remind them that you are there to offer advice on minimizing their overall tax bill. The goal is to avoid taxpayer frustration and make you look like a hero come tax time.

Nonbusiness Energy Property Credit (25C)

Type of qualifying property Building envelope components including insulating materials, windows, doors and roofing. Labor for installation is not included. Qualified energy property including electric heat pumps, high-efficiency furnaces, air conditioners, and water heaters as well as biomass fuel stoves. Includes labor for installation. Maximum credit

Residential Energy Efficient Property Credit (25D)

Solar water heating and solar electric property, fuel cell property*, small wind energy property and geothermal heat pump property. Includes labor for installation. *Fuel cell property must be installed on the taxpayers principal residence only.

30% of the installed cost of the $500 lifetime total. Separate equipment. Available to offset both limitations apply: advanced air regular tax and AMT. circulation fans ($50), furnaces ($150), windows and doors ($200) and water heaters, heat pumps, central air conditioners and biomass stoves ($300). Available to offset both regular tax and AMT. Not allowed Must reduce basis by the amount of credit Allowed Must reduce basis by the amount of credit

New construction Basis adjustment Manufacturer certification Refundable/carryover

Can be relied upon unless the IRS Can be relied upon unless the IRS publishes revocation publishes revocation Not refundable and carryover is not allowed December 31, 2013 Not refundable but carryover is allowed to any year the credit applies December 31, 2016

Expiration of credit

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HOW TO

Energy Credits continued from page 7

Tim and Amy Green Form 5695, Residential Energy Credits

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Tim and Amy Green Form 1040, U.S. Individual Income Tax Return

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ACA

The Individual Health Care Mandate

What does it mean for you?

f you arent sure what to make of the Affordable Care Act, then youre in excellent company. Quite a few people still dont understand how the healthcare plan is going to work, and even more are unclear on how the individual healthcare mandate in particular will affect them and their loved ones. Thankfully, you still have some time to gure it all out and get your facts straight. The individual mandate, along with all it entails, ofcially goes into effect on January 1, 2014. Lets take a closer look at some of the specics in regards to how its going to work.

By Sean T. OHare, CPA

What is the Individual Healthcare Mandate?

In a nutshell, the individual health reform mandate will require all legal residents of the United States of America to purchase at least basic health coverage beginning in

2014. The consequence of failing to do so will come in the form of a tax penalty. In the year 2014, the penalty will be the greater of a xed $95 per adult and $47.50 per child, or 1% of the household income. The xed amount, however, is capped at three times the dollar amount for adults. A family of two adults and three children, for example, would have a xed dollar amount of $285 (3 x $95) instead of $332.50 ($95 + $95 + $47.50 + $47.50 + $47.50). In this example, the penalty would be the greater of $285, the xed dollar amount, or 1% of their household income. These values increase in future years to account for ination. Before we can nally accomplish the goal of implementing a fullscale universal healthcare system, we must rst lay the groundwork. The individual mandate is a big part of that groundwork, as is the

establishment of the Affordable Care Act, which further prevents insurance companies from unfairly raising rates, stopping coverage, or taking advantage of their customers.

Who is Exempt from the Individual Healthcare Mandate?

Naturally, there are going to be certain groups of people who are exempt from the requirements set forth by the mandate, particularly those who truly cant afford the costs of individual healthcare and those who are subject to extenuating circumstances. According to Congressional Budget Ofce estimates, less than 2% of Americans are expected to qualify for exemption. Those who do include: Members of recognized religious sects who are exempt from selfemployment tax. [5000A(d)(2)(A)] Members of health care sharing ministries. [5000A(d)(2)(B)] Individuals who are not U.S. citizens or nationals who are nonresident aliens or are present in the U.S. illegally. [5000A(d)(3)] Incarcerated individuals, other than those who are incarcerated after dispositions of charges. If the charges are pending, this exemption does not apply. [5000A(d)(4)] Members of Indian tribes. [5000A(e)(3)] Individuals with a short coverage gap, which is generally less than three months. [5000A(e)(4)]

10

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Get the Answers You Need

natptax.com
Individuals whose household income is below the threshold for having to le an income tax return. Note that household income generally includes the income of all dependents claimed by the taxpayer. Its possible to have no ling requirement, but not be exempt if the household income is over the threshold. [5000A(e)(2)] Individuals who cannot afford coverage based on their expected contribution being higher than 8% of their household income. [5000A(e)(1)] Individuals with a hardship exemption certicate. This is based on facts and circumstances when all the other exceptions dont apply. This is based on the state marketplace determination, not the IRS. [5000A(e)(5)] to health insurance plans that encompass the minimum allowable amount of coverage. Beginning in 2014, plans that cover essential health benets must cover a certain percentage of costs, known as actuarial value (AV). The Health and Human Services Department (HHS) has a calculator available that will help taxpayers determine whether the plan provides minimum value. When certain values, such as deductibles, premiums, coverage and more, are entered, the AV calculator is able to determine what percent the plan provides. The HHS also intends to assign metallic levels asserting what percent is met, with bronze being 60%, silver 70%, gold 80%, and platinum 90% (Public Law 111-148 Section 1302). Metal levels will allow consumers to compare insurance plans with similar levels of coverage and cost-sharing based on premiums, provider networks, and other factors. In addition, the health care law limits the annual amount of cost sharing that individuals will pay across all health plans preventing insured Americans from facing catastrophic costs associated with an illness or injury. For more information from the HHS website, including how the AV was determined, see http://cciio. cms.gov. Search for actuarial value and then click on the Actuarial Value and Cost-Sharing Reductions Bulletin link. ofcial health insurance exchange. These insurance exchanges will make shopping for, obtaining, and maintaining qualifying insurance plans much easier for American citizens by providing a sort of one-stop shopping option they can utilize. To be listed, each insurance option offered to citizens via the exchange will have had to undergo an intensive evaluation and need to adhere to strict standards. Each plan included as part of the exchange will be guaranteed to provide essential and necessary health benets while also helping American citizens to qualify for any and all tax subsidies, government programs, and additional perks that are available to them. The insurance exchange will also be designed to make it a simple process to compare the benets of one plan to another. Comprehensive details and statistics will be made available in regards to both individual and small business plans. Furthermore, all of this information will be easily accessible online to anyone with an Internet connection. For more information, visit healthcare.gov.

Affordable Care Act

The penalty is calculated and imposed on the individuals tax return and is paid with the return. If the penalty is not paid, demand will be made by the IRS and follows the procedures similar to penalties in Subchapter B of Chapter 68. An example of a penalty in this subchapter is the willful failure to furnish Form W-2. The IRS cannot, however, levy property for the individual mandate penalty. The IRSs only recourse is to offset future refunds.

What Kinds of Health Insurance Plans Qualify?

Assuming you dont fall into any of the exemption categories, youll naturally want to know what the actual standards are as far as which insurance plans qualify and which dont. The ofcial denition of qualifying health insurance refers

A Closer Look at the Insurance Exchange Marketplace

The future of healthcare under the Affordable Care Act and the Individual Healthcare Mandate will be moderated by each states

Sean T. OHare is a CPA and owner of OHare Associates, CPAs, which has ofces in South Portland, Maine and Boston, Massachusetts. Sean primarily works with individuals and small businesses doing proactive tax planning and tax compliance. He is an active community member and has held leadership positions in many civic and non-prot organizations. When hes not at work, Sean enjoys running marathons, bicycling, swimming, stand-up paddle boarding, and spending time with his family.

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TAX TALK

Payments to Bank Trustee continued from page 5

statutory employee categories. The Court looked at the degree of control, investment in facilities, the opportunity for profit or loss, the ability to discharge, the taxpayers regular business, the permanency of the relationship and the belief each party had with regard to the relationship being created. While Blodgetts facts supported employee status regarding investment in facilities, opportunity for profit or loss, and permanency of relationship, the factors against this classification weighed much heavier. The bank could not exercise control over him as trustee; his duties were governed by the corporators of the bank and were outside of the bank management. The bank could not discharge Blodgett from his duty as a trustee. That was up to the corporators. Finally, the relationship of the parties indicated independent contractor status. He was never issued a W-2 in the years as trustee, the bank CPAs classified the trustees as independent contractors, and Form 1099-MISC was consistently issued to him. Because the Court found the factors for independent contractor status to outweigh the employee status, they concluded the amount of non-employee compensation reported to Blodgett was equivalent to the fees paid to corporate directors, and thus was subject to selfemployment tax.
Richard E. Blodgett, Jr., et ux. v. Comm. TC Memo 2012-298

an independent contractor, and thus his compensation was not subject to self-employment tax. The Tax Court considered the facts of Blodgetts relationship with the bank and tried to find statute, regulations, IRS rulings or case law that would specifically characterize the income earned by a trustee on the board of a community savings bank. None were found, so they turned to the common law rules to determine his status. First, the Court found many similarities between a bank trustee and a corporate director. However, they did note that regardless of the similarities, the trustee would be an employee if the facts met the common law analysis and whether or not he fell within one of the

Q&A

From the NATP Research Services Archives

If Jon provides services on behalf of the corporation, he is an employee and should be receiving reasonable compensation. If the corporation requires Jon to have a home office, he can deduct the expenses on Form 2106 as unreimbursed employee business expenses. Since the corporation has no fixed business location, theres an obvious need for Jon to have a home office. Alternatively, the corporation can set up an accountable plan and reimburse Jon for any out-of-pocket expenses he incurs. Or, the corporation could pay rent, but this is not the best option because the IRS does not allow employees to deduct expenses when renting part of their dwelling unit to their employer. 12
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Jon is the owner of an S Corporation that doesnt have a fixed business location. Can he claim a home office deduction?

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BOARD CANDIDATES
n behalf of their Chapter members, Chapter presidents will soon be voting for candidates to the NATP Board of Directors. Because these are the future leaders of our Association, its in your best interest to get to know the candidates and express your opinions to your Chapter president. Learn more about the candidates at natptax.com by clicking on About NATP and then 2014 National Board Candidates. You can nd contact information for your Chapter president and other Chapter leaders by clicking on Chapters or by calling 800.558.3402. Being connected at the Chapter level is the best way to get the most from your NATP membership. NATP election results will be announced at the November Board of Directors meeting.

Jean Millerchip, EA, CFP Nutley, NJ

Bringing 37 years of experience to her practice, Jean specializes in financial planning and individual, estate and trust taxation. An NATP member since 1988, Jean has served as treasurer, secretary, vice president, and president of the New Jersey Chapter. She has served on the National Board for six years, has been the Nominations Chair for two years, and is currently the National vice president. In 2007 Jean was named NATPs Tax Professional of the Year.

Gerard F. Cannito, CPA, CFP Denver, NC

Brett A. Rosser EA Groveton, TX

As owner of a public accounting and taxation office, Gerard has served over 1,600 individual and business clients. He has over 30 years of experience in the industry, holds a Series 7 Securities Broker license and a Life & Health Insurance license. In 2008, he sold part of his practice to spend more time with his family. Currently serving as treasurer on the NATP National Board of Directors, Gerard has also served as both president and vice president of the North Carolina Chapter.

A former police officer, Brett joined NATP in 2001 after returning to the family bookkeeping and tax preparation business. In 2005, he became a board member for the Texas Chapter and has served as treasurer and president. He is a Certified State Instructor and has taught RPM, RTRP, and various other classes throughout Texas. In early 2011, Brett opened his own practice. His work, NATP, his wife and four children keep him busy at all times.

Kim P. Loewer, EA, ATA Weybridge, VT

JoAnn Schoen, EA Rochester, MN

Since graduating cum laude from Middlebury College in 1976, Kim has spent the last 26 years in private practice preparing personal and business income taxes and representing clients in tax controversies. His firm, Loewer & Associates, also provides bookkeeping and payroll services. In 2012, Kim was appointed to the Vermont Tax Advisory Board and the Vermont Tax Technical Workgroup. He is a co-founder of the Vermont Chapter and currently serves as its president.
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JoAnn has been a tax professional in Rochester, MN since 1976 and has owned Accounting & Tax Associates, Inc. since 1984. She has been an NATP member since 1986, having served on the MN Chapter Board as president and treasurer, and treasurer on the Chapter Advisory Council. JoAnn served as the National treasurer from 20092011, and as president from 20122013. She is a graduate of the University of WisconsinMadison. September 2013

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TAX 101

DEFINING W Dealer, Trader, Investor

By Cindy Hockenberry, EA

hether your client is a trader, dealer or only an investor in stocks, bonds and other securities, you need to know how the difference in the definitions affect his or her tax return. All three have one element in common, the activity the person is engaged in involves the buying and selling of securities. Its the level of participation in the activity that drives the tax consequences.

Dealer
Dealers are perhaps the most distinguishable of the three groups. A dealer is an individual who acquires securities from sources that are usually unavailable to the general public and resells them to customers at a profit. This is perhaps the key distinction between a dealer and a trader or investor. Additionally, dealers who act as brokers must be registered with the Securities and Exchange Commission. To qualify as a dealer in securities, an individual must engage in transactions with customers. This means dealers typically keep an inventory of securities and depend on its turnover (rather than dividends, interest and appreciation) for their profits. Unquestionably, a dealer is engaged in a trade or business. This classification is important when determining the tax consequences and reporting requirements. The term trade or business is not 14
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defined in the code or regulations so we must rely on the courts and certain facts of each case. Specifically, dealers are engaged in the activity on a regular and continuous basis. They have customers and clearly have a profit motive. If they have not elected to be taxed as a separate entity, such as a partnership or corporation, their income and expenses are reported on a Schedule C. The determination of trade or business becomes even more significant (and less clear) when a taxpayer is deemed a trader.

Trader
A trader is somewhat different than a dealer and perhaps the most controversial of the three classifications. Its difficult to determine trader status. To make things more complicated, there are several different types of traders, and the IRS has provided little to no guidance on the subject. There are day traders, swing traders, position traders, extreme investors and short and long term investors. The type we hear about the most often is day trader so the focus on this discussion is on this group, simply referring to them as traders. A trader typically buys and sells via the Internet, making several, perhaps hundreds, of trades a day. Traders do not sell to customers, are not required to hold a securities license and only trade for their own account. Traders profit on the fluctuations in the market and generally hold the stock for a short period of time. Their securities are capital assets, the dispositions of which result in capital gains and losses. The Taxpayer Relief Act of 1997 attempted to clarify the tax treatment of traders. In general terms, taxpayers are engaged in a trade or business when they are

able to ascertain that the activity is conducted with a profit motive and conducted on a regular and continuous basis. In many cases, this is their only, or primary, source of income. In Groetzinger v. Comm. 107 S. Ct. 980, the Supreme Court ruled that to be engaged in a trade or business, the taxpayer must be involved in the activity with continuity and regularity and that the taxpayers primary purpose engaging in the activity must be for income or profit. Although this case dealt specifically with a professional gambler, it confirms the availability of business status for traders and provides a basis for deducting the expenses under 162. The Supreme Court decision established that the expenses a trader incurs are deducted as business expenses on Schedule C as opposed to investment expenses on Schedule A. As such, they are not subject to the 2% AGI limitation or added back for alternative minimum tax purposes as is the case for an investor. Another benefit for traders is that they can make the markto-market election under 475(f) on their tax return. This election effectively changes capital gains or losses into ordinary income or loss. Depending on the taxpayers situation, this can be a huge advantage.

Investor
Investors are generally in the market for the long haul. They do not have the volume of buys and sells a trader would have and they depend on the interest, dividends and appreciation to make their profit. Most taxpayers are classified as investors. The IRS FAQ website defines an investor as trading solely for their own account and do not carry on a trade or business. Their securities sales result in capital gain or loss and their deductible expenses are itemized deductions. At first glance, this might appear similar to the definition of a trader. There is one significant difference, however. An investor generally has another source of income and does not depend primarily on the fluctuations of the market to subsist. An investor can, and generally does, sit on his or her stocks and waits for the most opportune moment to sell. Since this is not their main source of income, they can afford to do just that. This boils down to the regularity of the sales. Since classification of a trade or business has hinged on regularity and continuity, it would be safe to assume that an investor is not engaged in the business of buying and selling stocks. Once you understand the differences between the three groups, classifying your clients and knowing how to effectively apply the proper tax law becomes clearer.

Cindy Hockenberry, EA joined NATP in 1989 as a tax researcher and later became the information coordinator. She is currently the Tax Knowledge Center Manager with duties that include interpreting complex tax laws and disseminating the information to the association members through various NATP publications. In addition, she is responsible for the overall quality of the responses to questions answered by the Tax Knowledge Center team. Cindy is also the primary association spokesperson for media inquiries. Hundreds of newspapers, magazines, and websites have quoted her in their tax-related articles. Cindy has a Bachelor of Arts degree in liberal studies from the University of WisconsinOshkosh.

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