Finance Tax Time

A good CPA is worth their weight in gold. A cracker jack attorney can save your bacon when it comes to upholding your legal rights and due justice. What happens when you ask them for assistance with something like your capital gains tax problem when you’re ready to sell your highly appreciated asset?

Chances are, you may get incorrect or incomplete advice which may result in the unnecessary loss of a lot of cash and income growth potential.

I am a great believer in working closely with competent CPA’s and Attorneys. As a matter of fact, many times it is an absolute necessity. To complete a good Capital Gains Tax Saving Strategy, the Financial Advisor, CPA and Attorney should all be in harmony so that the client can hang onto as much gain as possible.

That said, an incompetent or unknowledgeable professional can really cause great financial harm. Just because someone passed their CPA or Bar exam at one point does assure that they are well versed on capital gains treatment. A good professional will either admit to their lack of knowledge, or take the initiative to do the proper research to bone up on the subject.. One may have to pay for their research time, however, as most do nothing for free.

Case in point; I have a client in the mid-west. She has been having great difficulty finding a good tax professional in her area (fairly rural). She needs a good professional, as we are considering doing partial 1031 exchanges with her property. The first person she called told her she had no options but to pay capital gains tax on sale.

I set out to find her someone that knew what they are doing. I contacted a “find a good CPA” type of site and told them what I was looking for. They gave me a name and I called them. The fellow I spoke with seemed to be on the same page, so I had him contact my client.

I then got an email from my client. Someone from his office had contacted her. She told my client she was knowledgeable on capital gains treatment and proceeded to give my client blatantly incorrect tax advice without knowing what she was doing or taking a complete financial workup.

I called the CPA I talked to and relayed what the “assistant” said. He promised to contact my client and straighten out the misunderstanding. Then, much to my dismay, he contacted the client and gave more wrong information!

I am not a CPA or licensed tax professional. I can go to the IRS website to verify information I am forwarding, however. I proceeded to find the correct information and email it in writing to both my client and the “tax professional”.

Needless to say, my client will not be using this particular CPA. What a complete waste of precious time and energy, however. This is exactly what I was trying to avoid in the first place.

I have had very similar experiences with attorneys. They may be great at some things they do on a regular basis. However, many will not do their research on something they are not familiar with before dismissing it out of hand. This is a great disservice and can cost a client a huge sum of proceeds.

The moral of this story is: make sure you are consulting with experienced and knowledgeable professionals when exploring capital gains tax strategies. I have found that if all parties are on a conference call, the correct information can be discussed amongst all, and if there are conflicting opinions, everyone involved can produce the correct information from a qualified source and disburse it to all parties.

A professional team is crucial when implementing a capital gains tax strategy. Don’t take the advice of someone who dismisses something out of hand without giving specific reasons to both you and the party recommending the strategy.

After all, if you needed brain surgery, you wouldn’t go to your general practitioner would you?

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To understand the capital gains tax, we must begin by understanding exactly what is meant by “capital gains”. Capital gains is the income that a person gets from the sale of an investment. These investments may take the form of a piece of real estate property like a house or a farm. It can also be a family business or even a work of art. The capital gain is basically defined as the difference between the money that is realized from the sale of an asset and the price that was paid for it.

The amount of the tax that is imposed varies and actually depends on a variety of factors, which even include how long the seller has owned the investment/property as well as what type it is. The capital gains tax will not be asked for until the investment/property is actually sold. For instance, if the stocks in your portfolio have been appreciating in value, you can rest assured that you won’t have to pay any type of taxes on them unless you have actually sold the stocks.

Investors should also remember that unlike other taxes, the rate imposed on the capital gains tax is not fixed. The rate imposed will depend on how long the asset has been owned. A good example would be an asset that has been owned for less than year. The capital gains tax that will be imposed on the sale of this property will be at the same rate as an ordinary income. On the other hand, the tax rates that will be given on the sale of a property that has been in the possession of the owner for more than a year can end up being lower.

As with all other tax impositions, there are a few rules that you need to be aware of in order to prevent any kind of major tax liabilities.

One rule that you should remember is that in most cases you can completely avoid capital gains tax if the house that you are planning to sell is considered as your principal residence. In order for a house to be considered as the principal residence you must have taken residence there for two of the last five years. The two years imposed don’t necessarily have to be sequential years or even the most recent two years. Just as long as you fulfill the two-year rule the government will consider the house your principal residence. In fact, you don’t even need to be living at the house at the time that you sell your property.

Quentin James writes articles for the Common Sense Investor. Some of his recent articles focus on Real Estate. He also contributes to the blog Technology & Investing.

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“I would rather expire at my desk than to sell my business and pay Uncle Sam one dime in taxes.” How many owners that have paid their fair share of taxes for twenty years of building their business feel this way? The tax bite is the single biggest factor in an owner’s reluctance to sell his/her company.

I have previously written articles discussing various aspects of transaction structures to minimize taxes. As a result, I am often contacted by a panicked seller that is a week from closing his business sale as he looks in disbelief at his accountant’s spreadsheet detailing the tax burden of his impending sale.

Recently, the seller of a Sub Chapter S Corporation with an $8 million transaction value contacted me. The tax basis was below $200,000 and $4 million of the transaction value was the assumption of debt. When the dust settled, he was looking at a capital gains tax liability of a staggering $965,000 while only receiving the remainder of proceeds after the assumption of debt. The assumption of debt is considered as part of the capital gain for tax purposes.

The owner sent his accountant’s spreadsheet to me and since I am not a tax accountant, I sent it to my tax wizard at BDO Seidman. He found a few small tweaks, but said that there was not much that could be done from an accounting standpoint for this owner. When I reported this back to the seller I could feel his disappointment and frustration.

So I began my quest for a better solution. After several dozen phone calls to my professional network, I was directed to a little known vehicle called a Private Annuity Trust. This vehicle has passed the scrutiny of the IRS and the Tax Court. It is not a way to avoid the payment of taxes, rather a method of deferring them with substantial economic benefit to the owner’s beneficiaries.

Below is a simplified description of the process. As the owner contemplates the sale of his business (or any highly appreciated asset for that matter) he “sells” it to a trust PRIOR to its ultimate sale. This trust purchases the asset at FMV and exchanges an annuity payment stream complete with IRS life expectancy tables and interest rates. The trust then sells the company to the buyer to fund the annuity.

The transaction is accompanied by a gift to the trust in the amount of 7% of the face value of the annuity. This is so it qualifies as a trust by creating an entity with economic value. Remember, the private annuity is viewed as having zero economic value because the asset minus the obligation theoretically equals zero.

The trust is in the name of the owner’s beneficiaries and all aspects of the trust are controlled by the trustees/beneficiaries and not by the owner. The trust for the benefit of the heirs owns the assets and owns the annuity payment obligation. The trust can be structured to defer the annuity payments for a period of time to coincide with the owner’s need to receive these payments, lets say, for example, ten years During those ten years the trust’s investments or a commercial annuity grow without incurring a tax bite for the business sale.

When the annuity payments start, the owner is taxed at his then current tax rate for the portion of the annuity payment attributable to the capital gains, his basis (no tax), and depreciation recapture from the sale, and the income produced from the annuity. The annuity pays the owner and spouse this annuity payment until last to die or until the annuity investments run out. If the owner and spouse die, any remaining assets are transferred to the beneficiaries outside of estate tax liability.

If your investments perform at the rate used in the annuity calculation and the last to die lives to their exact life expectancy, theoretically the trust value will be whatever the gift portion (7% of the selling price) has grown to. However, if the investments do very well and you outlive the life expectancy tables, you could receive payments well in excess of the original annuity face value. Those excess payments would be taxed at your then current income tax rate.

If the investments do well and the value grows above the required annuity reserve amount, the excess can be distributed to the beneficiaries as income.

In the simplest of views, this acts like an IRA. You are not currently taxed on the amount you put in, it grows tax deferred and you pay taxes upon distribution, hopefully at a far more favorable tax rate. In the case of the frustrated seller from above, what if he deferred all payments by ten years on the full sale price and the $965,000 in capital gain taxes owed? He had a life expectancy of 20 years beyond the start of the distributions. The $965,000 that he did not pay in taxes grows at 7% to $1,939,323 by the time distributions start.

Every annuity payment contains a portion of the capital gain or 1/20th of the total capital gain annually. Therefore, the bulk of the resulting investment value of the capital gains tax deferral provides huge returns for years to come.

If it seems too good to be true, remember it is tax deferral and not tax avoidance. The owner has sold his business first to the trust in return for an annuity payment stream. The owner cannot control the trust. To the extent that the owner wants immediate access to some of the sales proceeds, he would pay all taxes in proportion to the amount he is receiving. In cases like the one above, this tax deferral tool can have a dramatic impact on the financial status of the owner and his heirs by allowing the tax deferred funds to compound for many years before their ultimate distribution and the payment of any tax.

Dave Kauppi is a business broker and President of MidMarket Capital. We help business owners with all aspects of Mergers and Acquisitions.

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