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2020 estate strategies in times of uncertainty for privately held business owners

05.26.20

Read this if you are a business owner or advisor to business owners.

With continued uncertainty in the business environment stemming from the COVID-19 pandemic, now may be a good time to utilize trust, gift, and estate strategies in the transfer of privately held business interests.

In simple terms, business valuation is a function of future cash flow and the risk in achieving those cash flows. As uncertainty in the ability to achieve future cash flow rises, risk rises at the same time. The value of a business is driven by risk. Holding all else equal, as risk continues to increase, the value of a business decreases. Similarly, if all else is equal, a continuing decline in anticipated cash flow results in decreased business values. An increase in risk, coupled with growing uncertainty and decline in cash flow may create a compounding effect of depressing business values. 

Cash flow challenges

Even if the cash flow of a privately held business has held up thus far, there is great uncertainty as to future cash flow. The duration of this uncertainty is a major concern for many business owners in the current environment. It was not long ago that many were anticipating the pandemic impact would be short-lived, resulting in a v-shaped recovery. Those expectations have given way as national unemployment numbers continue to climb. This continued uncertainty may lessen the value of privately held businesses. Depending on the company, its expectations, and impact from industry and economic factors, the effect on future cash flow may be significant.

With these elements in mind, the current and near-term may serve as an advantageous time to consider the transfer of interests in a privately held business. Increased risk and lowered future expectations will combine, resulting in lower values—particularly as compared to performance during the recent strong economy. 

Further opportunities exist if you are considering transferring a non-controlling interest in a company. Discounts applicable to minority or fractional interests typically include discounts for lack of control and lack of marketability, and in some cases discounts for lack of voting rights. These discounts may serve to further reduce the overall value transferred through a given strategy. 

What strategies can be used to capitalize in this environment?

From a federal perspective, gift and estate tax lifetime exemption amounts are at all-time highs; currently, $11.58 million per individual in 2020. With portability, a married couple can gift or transfer over $23 million in value without incurring a federal gift or estate tax.

Coupled with the ever-increasing annual gift tax exclusion amount of $15,000 per recipient in 2020, executing a succession plan could not come at a better time. Individuals should be aware of the scheduled sunset of the above referenced amounts in 2025 with reversion back to previous levels of $5.0 million (adjusted for inflation).

Building on future uncertainty, the 2020 presidential election is quickly approaching, as well as budget concerns from federal and state administrative agencies resulting from COVID-19. As it is unknown whether the current estate gift and estate tax exemptions will remain at these all-time highs, it may be an opportune time to leverage the current lifetime exemption or annual gift tax exclusion. 

Given the likely decline in value of closely held business interests or marketable securities combined with historically low interest rates currently, transferring assets now that will likely rebound in value later will provide transferors/donors with the most bang for their buck. 

Certain trust vehicles are often beneficial in a low-interest rate environments and provide varying forms of flexibility to the grantor or donor. When combined with the increase in the charitable deduction limits for taxpayers who itemize their deductions, this is an optimal time for transferring assets.  

One of the most important aspects of estate planning is to review and update your estate plan regularly for changes in your financial or family situation. Estate plans are not static and should be periodically reviewed to ensure they achieve your goals based upon your current situation.

Our mission at BerryDunn remains constant in helping each client create, grow, and protect value. If you have questions about your unique situation, or would like more information, please contact the team.

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On November 8, 2022, Massachusetts voters approved a constitutional amendment to alter the state’s flat 5% income tax to add a 4% surtax on annual income exceeding $1 million. The so-called “millionaires tax,” also referred to as the “Fair Share Amendment,” is effective for tax years beginning on or after Jan. 1, 2023. The annual income level subject to the surtax would be adjusted yearly to reflect increases in the cost of living.

This measure is expected to bring in revenue of between $1.2 and $2 billion annually. The proceeds from the increased tax collections will support state budgets in the areas of education, roads, bridges, and public transportation. The measure passed with 52% voter support and is the sixth attempt to change the state’s flat income tax rate since 1962. This amendment is expected to affect about 0.6% of the state’s population, or about 20,000 taxpayers.

If you expect your income to exceed $1 million in 2023 and have questions regarding the recent legislation, please contact a member of our state and local tax team.

Article
Massachusetts voters pass "Millionaires tax"

Read this if you are a business owner or involved in estate planning.

I have some good news, and I have some bad news. Here’s the bad news. Inflation impacts our lives in countless ways—spending, interest rates, savings, business decisions—driven by economic cycles beyond our control. Price increases are observable across the entire spectrum of goods and services. Businesses able to pass on increases in sustainability may continue benefiting from these general increases, but only to a point. These increases are characteristic of late expansion and slowdown phases of economic cycles and typically top out in a contractionary phase. Economic policy, by way of restrictive monetary policies, aims to reign in the acceleration rate of inflation. This impact is typically subject to a time lag in observation. Economic decline, holding all else equal, typically results in lower overall profitability and depressed business value. Increased uncertainty, holding all else equal, typically results in higher costs of capital, which in turn results in depressed business value. Bad news indeed.

Now for the good news. A potential silver lining exists. You may have the ability to transfer a larger portion of ownership of privately held business interests at lower levels of value—while annual exclusions are increasing because of inflation. Here’s how.

Federal gift tax annual exclusion increasing

For the tax year ending December 31, 2022, the federal gift tax annual exclusion is $16,000 per individual ($32,000 per married couple choosing to split gifts) for 2022. IRC § 2503 (b)(2) allows for inflationary adjustments to annual gift tax exclusion, but only in $1,000 increments. Based on inflationary adjustments, the federal gift tax annual exclusion for 2023 is $17,000 per individual ($34,000 per married couple choosing to split gifts). The gift tax annual exclusion allows a taxpayer to gift a certain amount to a recipient each year without using any of the taxpayer’s lifetime exemption amount. 

For gifts over and above an annual exclusion amount, each taxpayer receives a lifetime transfer tax exemption, which is unified for both federal gift and estate taxes. At current 2022 levels, the lifetime exemption amount is $12.06 million for each taxpayer, or $24.12 million for married couples. Inflationary adjustments impact this amount as well. For 2023 the lifetime exemption is $12.92 million for each taxpayer, or $25.84 million for married couples. That is an increase of almost $900,000 per taxpayer in one year. 

Gifting strategies

Knowing the current and future annual exclusion and lifetime exemption amounts, privately held business owners may make use of efficient gifting strategies in straddling the calendar year reference date of valuation. In this example, the subject company and subject interest would be valued on distinct sides of the calendar year with one primary analysis using very similar financial data (a balance sheet as of December 31, 2022, may closely resemble a balance sheet on January 1, 2023). The primary analysis may allow the privately held business owners to accomplish 2022 and 2023 planning in one fell swoop.

If transfers through gifting are already part of your overall long-term wealth and estate plan, accelerating parts of these plans may make sense—particularly as lifetime exemptions are at historically high levels. 

2017 Tax Cuts and Jobs Act 

The 2017 Tax Cuts and Jobs Acts provides for reversion of the lifetime exemption amount back to $5 million (adjusted for post-2011 inflation) for each taxpayer and $10 million (adjusted for post-2011 inflation) for married couples after the year 2025.

If considering gifting strategies as part of your overall wealth and estate plan, consult your professional legal and accounting teams to fully understand whether additional gifts can or should be made in 2022 and in 2023 for tax planning purposes.

Article
An inflationary silver lining for privately held businesses

Thanks to a little-known law, eligible Massachusetts taxpayers will receive a tax credit in the form of a refund this fall—just in time for holiday shopping. Chapter 62F of the Massachusetts General Laws, a voter passed initiative from 1986, states that if state tax revenue collections exceed a cap tied to wage and salary growth, the surplus must be returned to the taxpayers. This tax credit was only triggered once before – 35 years ago.

According to the Mass.gov website, in Fiscal Year 2022, state tax revenues exceeded the cap by $2.941 billion—the sum of which will be returned to taxpayers by check or direct deposit in the coming months.

Governor Baker stated that a preliminary estimate of the refunds will be approximately 13% of the taxpayer’s personal income tax liability in 2021, though they will update that estimate in late October, once all 2021 tax returns have been filed.

More details on the tax refund:

  • Taxpayers, both resident and non-resident, who have filed a 2021 state tax return on or before September 15, 2023, are eligible for the refund.
  • The expected time frame for the issuance of refunds is expected to begin November 2022.
  • Individual refunds may be reduced by refund intercepts, such as unpaid child support or unpaid tax liability.
  • Massachusetts taxpayers can use this online refund estimator to calculate their estimated refund using information from their 2021 tax returns.

If you have questions, please contact a member of our state and local tax team.

Article
Chapter 62F law to give Massachusetts taxpayers a bonus refund

Read this if you are a New Hampshire resident or do business across state lines.

On June 17, 2022, New Hampshire’s Governor, Chris Sununu, signed House Bill 1097 (HB1097) into law. This new legislation asserts that income earned and received by residents of the State of New Hampshire for services entirely performed within the state may not be subject to income taxation in any other state.

The signing of this bill was in response to the US Supreme Court declining to hear a case in which the state of New Hampshire sued the Commonwealth of Massachusetts. This case stemmed from the Commonwealth issuing temporary and early guidance as the pandemic forced New Hampshire workers who would normally commute to Massachusetts to work from home. The early guidance directed employers to maintain the status quo: Keep withholding income tax on your employees in the same manner that you were, even if the workers may not be physically coming into the Commonwealth.

Even though the Massachusetts Department of Revenue lifted the emergency telecommuting rules effective September 2021, New Hampshire lawmakers wanted to prevent any future personal income taxation of its residents who work remotely for a company in another state. For more context, read the July 2021 article from our state and local tax team about the dispute between Massachusetts and New Hampshire.

New Hampshire’s recently passed legislation was an example of its desire to protect its favorable business climate, defined in part by its lack of personal income tax, from the perceived overreach of its neighboring states. Although the telecommuting rules imposed by Massachusetts are no longer effective, House Bill 1097 was introduced to discourage any subsequent taxation of New Hampshire residents who are performing work solely in the Granite State.

This issue of interstate taxation is not unique to New Hampshire and Massachusetts, as dozens of other states have issued temporary regulations and requested guidance from the Supreme Court. As these issues rise in prominence, it will be important for both employee and employer taxpayers to review the guidance issued by each state to confirm the applicable tax treatment is proper.

If you have questions about how the tax law changes may affect you, please contact a member of our state and local tax team.

Article
New Hampshire says no to income taxation by neighboring states

Read this if you do business in New Hampshire.

On June 10, 2021, Governor Chris Sununu signed Senate Bill 3-FN (“SB3”) into law, clarifying New Hampshire’s state income tax treatment of federal loans under the Paycheck Protection Program (“PPP”). As a result of this legislation, New Hampshire now fully conforms to the federal income tax treatment of the debt forgiveness and deduction for expenses related to PPP Loans. New Hampshire businesses that had PPP loans forgiven may now exclude the debt forgiveness from gross business income and deduct the related business expenses in the same manner that they can for federal income tax purposes.

The exemption of PPP loan forgiveness from the New Hampshire Business Profits tax base is applied retroactively to taxable years ending after March 3, 2020, corresponding with the date of the enactment of the federal Coronavirus Aid, Relief, and Economic Security Act (CARES Act). New Hampshire taxpayers who received debt forgiveness through the federal Paycheck Protection Program should review their 2020 New Hampshire tax returns to evaluate whether an amended return should be filed for potential refund opportunities.  

If you have questions about how the tax law changes may affect you, please contact a member of our state and local tax team.

Article
Attention taxpayers doing business in New Hampshire

Read this if your company does business in the EU.

Major changes are coming to the EU VAT laws on the online supply of goods and services. The rules, which apply as from July 1, 2021, will affect U.S.-based businesses selling or facilitating sales to private individuals in EU member states. With just over a month remaining before the rules become effective, such businesses should begin immediately to prepare for their new VAT registration and collection responsibilities.

What are the new EU VAT rules?

The EU VAT rules applicable to cross-border B2C e-commerce activities are undergoing a major “refresh”—or modernization—as from July 1, 2021 (postponed six months from the originally planned effective date of January 1, 2021). From July, updated VAT rules will apply to online sales (including online marketplaces) to EU private consumers and to the import of low value goods. (The European Commission published explanatory notes on the rules on September 20, 2020, which include clarifications, FAQs and examples.)

The objectives of the new EU VAT rules are to: (i) simplify compliance obligations for vendors that potentially have to comply with the VAT rules in the 27 EU member states; (ii) increase VAT revenue for the individual member states by bringing more transactions within the scope of the EU VAT net; and (iii) reduce VAT fraud.

Any business making or facilitating online sales or deliveries of goods to consumers in the EU will likely be impacted in some way by the changes.

The EU VAT law changes are as follows:

Intra-EU sales to consumers

All B2C sales of goods will be taxed in the country of destination, meaning that sellers will need to collect VAT in the EU member state to which the goods are shipped.

The existing thresholds for distance sales in the EU will be abolished and replaced by an EU-wide registration threshold of €10,000 (approximately $12,000). This is an important change and potentially could create considerable EU VAT registration and reporting obligations for U.S.-based businesses selling goods from warehouses located in the EU if not proactively addressed.

To reduce the administrative burden and simplify VAT reporting, a new reporting system, called the One-Stop Shop (OSS) will be expanded to include the distance sale of goods. U.S. businesses can register for the OSS scheme in the EU member state of dispatch and can report and remit the VAT due via a pan-EU VAT return instead of having to VAT register in each EU member state.

Sales via online marketplaces

In certain circumstances, businesses that operate an online marketplace, known as an “electronic interface” in the EU) or that facilitate the sale of third-party goods through an online marketplace will be considered the “deemed supplier” of the goods sold to EU customers and will be required to collect and pay VAT on such sales. As a result, businesses that sell via online marketplaces (e.g., Amazon, eBay, etc.) will not be required to account for VAT on such sales. 
Imports of low value goods

The VAT exemption for “low-value imports,” i.e., goods coming from outside the EU that do not exceed a value of €22 (approximately $26) will be abolished. Instead, the sale of low-value goods not exceeding €150 (approximately $180) to consumers in the EU through the business’ own website will be subject to VAT at the applicable rate in the destination country. The VAT due on low value goods can either be collected at the point of sale by the seller or collected from the consumer before the goods are released by the customer broker/delivery service. Where the seller opts to collect VAT at the point of sale, it can VAT register under the new Import One-Stop Shop (IOSS) system to account for and remit the VAT due.

VAT registration under the IOSS has several benefits, including:

  • Transparency to consumers: The customer will not be faced with any unexpected VAT costs since the total amount paid for the goods is VAT-inclusive;
  • Reduced compliance burden: Sellers can use a single IOSS registration to report and pay the VAT due on all sales covered by IOSS. Otherwise, if the seller acts as the importer (e.g., sells goods under delivered duty paid terms), it may need to register for VAT in multiple EU member states;
  • Quick customs clearance: IOSS is designed to enable goods to be cleared through customs quickly as no VAT is due at the time of importation, thus facilitating the speedy delivery of goods; and
  • Flexible logistics: IOSS simplifies logistics since goods can be imported into the EU in any EU member state. If IOSS is not used, goods can only be imported and cleared for customs in the destination EU member state, which may result in delays and additional costs.

How will the changes impact nonresident sellers?

As noted above, the EU rule changes will significantly affect U.S.-based businesses selling or facilitating the sale of goods and services online to consumers located in the EU. With just over a month left before the rules become effective, any U.S.-based business that may be impacted should take immediate steps to:

  • Understand the EU rules and how they will apply;
  • Assess the impact of the rules on supply chains;
  • Consider the impact on pricing due to different VAT rates applying in different jurisdictions;
  • Identify any adjustments that can be made (where possible) to mitigate the impact of the rules;
  • Be prepared to comply with new VAT obligations, including additional registrations, charging and collecting VAT, filing tax and/or information returns, etc.;
  • Update and adapt accounting and billing systems and master data records to identify when VAT should be applied and the appropriate rates in multiple jurisdictions; and
  • Cancel existing EU VAT registrations for distance sales that may be replaced by the OSS registration.

Failure to comply with the rules could result in the imposition of interest and penalties on the historic VAT liability. In addition to the EU VAT consequences, business selling goods that are imported into these jurisdictions must also take into account any customs implications because any compliance deficiencies could result in imported goods being delayed in customs, causing customers to be frustrated by shipping delays.

For questions about your specific situation, please contact the International Tax team. We’re here to help. 

Article
New VAT rules in the EU: What U.S. e-commerce businesses need to know 

Read this if your company does business in Canada. 

Major changes are coming to Canada’s Goods and Services Tax/Harmonized Services Tax (GST/HST) on the online supply of goods and services. The rules, which apply as from July 1, 2021, will affect U.S.-based businesses selling or facilitating sales to private individuals in Canada. With just over a month remaining before the rules become effective, such businesses should begin immediately to prepare for their new GST/HST registration and collection responsibilities.

What are the GST/HST changes in Canada?

Currently, only nonresidents that carry on business in Canada are generally required to register for and collect GST/HST (levied at the federal level in Canada) on taxable supplies of goods and services made in Canada. If the nonresident does not conduct business in Canada, it need not register for or collect GST/HST.

The impending rules aim to level the playing field between Canadian businesses (which must charge GST/HST on the supply of goods and services) and foreign suppliers by ensuring that GST/HST applies to all goods and services used in Canada, regardless of how they are supplied or whether the supplier is Canadian or nonresident. The rules will significantly impact nonresident vendors and online platform operators, in that foreign businesses will be required to register for GST/HST, collect GST/HST from customers, and report and remit tax to the Canadian tax authorities. Three types of supplies by foreign businesses will be affected:

  • Supplies of digital services
  • Supplies of accommodation made through an accommodation platform (AP)
  • Online supplies of goods through a fulfilment warehouse

Digital services

Foreign businesses and platforms that do not have a physical place of business in Canada but that supply goods and services online to Canadian consumers and/or non-GST/HST-registered businesses (i.e., B2C transactions) will be required to register for GST/HST, resulting in an obligation to collect, remit and report tax. The tax rate will be the rate applicable in the province where the consumer is resident.

Nonresident businesses will have to register for GST/HST purposes when their sales exceed CAD 30,000 (approximately USD 25,000) over a 12-month period or they may register voluntarily where the threshold is not exceeded. A simplified online registration will be available for these businesses, but it will not be possible for the nonresident business to reclaim GST/HST incurred on its own purchases. If nonresident businesses wish to recover GST/HST paid on business expenses, they may be able to register under the regular GST/HST regime.

Accommodation platforms

An AP is a digital platform that facilitates the supply of short-term rental accommodations (i.e., rentals for less than one month) to private customers for a price of at least of CAD 20 (approximately USD 16) per day (e.g., Airbnb, VRBO, etc.).

Nonresident APs will be required to register for GST/HST, and to collect, remit and report tax on the rental charges in cases where the owner of the property is not GST/HST-registered. Where the property owner is GST/HST registered, the AP will not be responsible for GST/HST; instead, the property owner will be required to collect/remit GST/HST on the rental charges. The GST/HST rate will be the rate applicable in the province where the property is located.

APs subject to these changes should register for GST/HST under the simplified online registration.

Fulfilment warehouses and websites

GST/HST registration will be required for the following types of transactions in cases where the nonresident business’ sales to consumers exceed, or are expected to exceed, CAD 30,000 over a 12-month period:

  • Direct sales of goods by a nonresident business directly (i.e., not via a distribution platform) through its website to Canadian consumers: In this case, the nonresident business will have to register, charge and account for GST/HST. 
  • Sales of goods by a nonresident business through a distribution platform to consumers in Canada: The distribution platform operator will be required to register for GST/HST and account for GST/HST in Canada. It should be noted that no GST/HST will be due on the service fee charged by the distribution platform operator to nonresident businesses.
  • Online sales of goods by a nonresident business (but not through a distribution platform) to customers, where the goods are located in a Canadian fulfilment warehouse: The nonresident business will be required to register for GST/HST and will need to keep records on its foreign vendors and submit these to the Canadian tax authorities. These information returns will give the tax authorities insight into which nonresident businesses need to be GST/HST-registered.

Nonresident businesses that carry out the above transactions will have to register under the standard GST/HST rules rather than under the new simplified regime and will generally be able to reclaim GST/HST incurred on their purchases.

Potential Provincial Sales Tax (PST) implications

In addition to having GST/HST registration and collection obligations, nonresident vendors also may be required to register for PST. Currently, British Columbia, Manitoba, Quebec, and Saskatchewan impose a PST, and three of these provinces (i.e., British Colombia, Quebec, and Saskatchewan) have introduced rules requiring nonresident vendors selling to customers in these provinces to register for PST purposes. The rules vary by province and will need to be considered in addition to the new GST/HST rules.

How will the changes impact nonresident sellers?

As noted above, the Canadian rule changes will significantly affect U.S.-based businesses selling or facilitating the sale of goods and services online to consumers located in Canada. With just over a month left before the rules become effective, any U.S.-based business that may be impacted should take immediate steps to:

  • Understand the Canadian rules and how they will apply;
  • Assess the impact of the rules on supply chains;
  • Consider the impact on pricing due to the GST/HST and the varying PST rates applied in in the aforementioned provinces;
  • Identify any adjustments that can be made (where possible) to mitigate the impact of the rules;
  • Be prepared to comply with new GST/HST obligations, including additional registrations, charging and collecting GST/HST, filing tax and/or information returns, etc.; and
  • Update and adapt accounting and billing systems and master data records to identify when GST/HST should be applied and the appropriate rates in multiple jurisdictions.

Failure to comply with the rules could result in the imposition of interest and penalties on the historic GST/HST liability. In addition to the GST/HST implications in Canada, business selling goods that are imported into these jurisdictions must also take into account any customs implications because any compliance deficiencies could result in imported goods being delayed in customs, causing customers to be frustrated by shipping delays.

For questions about your specific situation, please contact the International Tax team. We’re here to help. 

Article
New GST/HST rules in Canada: What U.S. e-commerce businesses need to know