A Fresh Look at Incentive Compensation

Bonuses: They’re not just for senior executives anymore. Many companies now offer performance-based incentives to rank-and-file personnel, too. But serious problems can occur when these incentives are too strong, poorly designed or insufficiently monitored.

For example, in a widely reported recent case, a large national bank set aggressive sales goals that came with financial rewards. To meet their goals, bank employees opened new credit card accounts in customers’ names without their knowledge or consent. The resulting fallout was a major embarrassment for the employer.

For some perspective, the accompanying table highlights results of the most recent WorldatWork member survey for 2017 variable pay budgets:

2017 Variable Pay: Budgets as a Percent of Total Compensation

Nonexempt hourly nonunion Nonexempt salaried Exempt salaried Officer/executive
Mean 5.5% 6.3% 12.6% 36.6%
Median 5.0% 5.0% 12.0% 35.0%
Source: WorldatWork 2016-2017 salary survey

Desired Behavior

Before thinking about the potential size of a bonus award, it’s important to consider what kind of behavior your company is hoping to motivate. According to the same WorldatWork survey, most employers tie bonuses and incentive compensation to multiple objectives.

Specifically, 70% based bonuses on a combination of organizational, divisional and individual performance. About one-third use more limited criteria. The determination of whether a single criterion or multiple criteria should be used in the bonus formula, and which one or ones, typically varies according to two factors:

  1. Company philosophy. You may want to instill in your workforce a spirit of cooperation by showing employees that, at least in part, their financial destinies are linked to coworker performance. If that’s the case, your bonus formula might include organizational performance metrics, such as overall customer relationships or how well the company communicates internally and externally.
  2. Individualized assessment of employee motivation. If you focus on differences in how particular employees are motivated, you might conclude that individual performance is the appropriate criterion for some and organizational performance for others. Then your approach might be to custom-fit your bonus formula to the individual or department. For instance, you could base bonuses on production or on contributing new ideas.

Harmonized Pay Plan

When establishing (or overhauling) a bonus plan, it’s important to harmonize incentives with your strategy on base pay. Let’s say you try to give at least modest annual raises to employees whose performance is merely acceptable, and perhaps larger raises to top achievers. In that case, you might be less ambitious with your bonus program.

Obviously there are only so many dollars available in the compensation budget. Also, think about the message you want to communicate through your pay plan. If you give automatic raises, even small ones, you’re saying that, performance aside, all a person has to do to get a raise is stick around for another year. If what you’re really hoping to say is that improved performance will pay off, a small standard raise, even if paired with a small bonus, is unlikely to be motivational.

If you’ve moved away from the practice of cost-of-living style raises, you may be able to award larger bonuses that do have the power to motivate. Also, that doesn’t lock you into an ever-growing base pay commitment.

Keep in mind, a generous bonus could be a waste of money if its structure isn’t carefully considered and communicated effectively to employees. In designing the bonus, you need to determine the specific behavior you wish to reward, and how it will be measured. Then communicate your expectations clearly to your employees.

Avoiding Pitfalls

Be aware of the possibility that some employees will be motivated to produce results that look good in the short run, but could have harmful effects long term. This is of particular concern when financial criteria such as revenue generation or operating profits are involved.

For example, if sales goals are highly aggressive and the bonus will represent a substantial proportion of the employee’s income, the risk of ethical lapses can be high. That means careful supervision will be important — particularly with newer employees.

When bonuses are based on the bottom line, guard against a manager’s aggressive cost-cutting that can produce deceptive short-term results but negatively affect growth in later years.

It’s also critical that employees actually have the ability, within the confines of their job responsibilities, to influence the desired outcomes that you’ve communicated. For instance, if greater accuracy is a stated objective, is it reasonable to expect an employee to find a way to reduce errors?

Naturally, not all bonus criteria are measurable. Some goals, such as “improve the level of cooperation among employees in your department,” will require a subjective assessment. But you can still give midyear feedback and possibly coaching as well.

Finally, before an incentive compensation plan is cast in stone, you may find it useful to discuss it with the employee. People are motivated differently, so connecting on an individual basis where possible may be helpful. That gives you the opportunity to modify the plan if he or she raises important and valid concerns that hadn’t occurred to you.

Still Have Questions?

Designing an effective compensation program isn’t necessarily an intuitive process, but it also isn’t rocket science. Detailed written resources exist to help you establish general policies. Two places to find reliable help are the Small Business Administration website, at sba.gov, and SCORE.org, a nonprofit association dedicated to helping small businesses meet common challenges

SCENARIO #3 – Lessee vs. Developer

A mineral rights lessee decides that the timing is right to flip his lease portfolio of undeveloped leases to a large oil and gas company, which in turn will develop the land for production. He isn’t in the business of E&P, but wants to retain an overriding royalty interest in the future oil or minerals produced. He negotiates a deal with the E&P company which will receive a 100% working interest (but receives only 80% of the revenue). In exchange, the mineral rights lessee will receive cash and carves out a 5% overriding royalty interest for himself (the remaining 15% of revenue will cover royalties owned by the original lessor).

In this scenario, the lessee/flipper carves out an ongoing interest in the property. Because the carved out interest has differing characteristics than the transferred interest, this transaction does not qualify for sale treatment. He does not get to deduct the cost of acquiring the mineral rights against the cash he receives from the E&P company. The cash payment is taxed as ordinary income and any royalties he receives in the future will be taxed as ordinary income. Essentially the transaction is treated as a sublease and taxed the same way as the original leasing transaction.

If, however, the lessee/flipper doesn’t retain any economic interest in the property, the transaction will essentially be treated as a property sale and he can offset proceeds by deducting his cost in acquiring the mineral rights. The net gain will be taxed as a capital gain.

Finally, assume the lessee/flipper decides to retain a fractional working interest rather than an override. He sells a 95% working interest to the E&P company and retains a 5% working interest. On the face of it, this transaction looks nearly identical to the transaction described above. However, since the retained interest has the same characteristics as the sold interest, the transaction qualifies as a sale. The proceeds the lessee/flipper receives will be offset by the proportionate share of the cost of acquiring the lease and the resulting gain will be taxed as a capital gain.

As you can see, there is a higher tax cost to retaining a piece of the action through a carve out — the royalties — because the lessee/flipper is gambling that the royalties from production will far outweigh his costs for retaining that 5%.

As for the E&P company, the cost of acquiring the leases are capitalized and will be recovered through depletion once the property begins production.

Conclusion: Retaining an overriding royalty interest after selling a working interest is a gamble that production will more than compensate for foregoing sale treatment.

To view other scenarios and learn more about this topic, visit: Oil & Gas Update: Tax Implications of Buying and Selling Mineral Rights

The oil and gas industry has experienced booms and busts of varying lengths since the dawn of mineral exploration. The current climate for O&G suggests continued consolidation, however forecasts by industry experts anticipate the boom may be back by 2018. For any owners or buyers of mineral interests, the market may be ripe for making deals now — with a careful eye toward the tax implications of buying and selling mineral rights. No two deals are alike, and it’s important to learn the potential tax impact and the types of taxes you may be paying.

Download Now: Oil & Gas Update: Tax Implications of Buying and Selling Mineral Rights

Scott Allen, CPA, joined Cornwell Jackson as a Tax Partner in 2016, bringing his expertise in the Construction and Oil and Gas industries and 25 years of experience in the accounting field. As the Partner in Charge of the Tax practice at Cornwell Jackson, Scott provides proactive tax planning and tax compliance to all Cornwell Jackson tax clients. Contact him at Scott.Allen@cornwelljackson.com or 972-202-8032.

Balancing Overhead, Budgeting and Risk to Increase Project Profits

Construction companies experience unique accounting structures due to expenses driving revenue as projects move through various stages of completion. By managing a variety of costs, such as overhead, budgeting, and talent, owners and project managers can improve cash flow and bid smarter on fixed price contracts.

Overhead and Budgeting

While profits (or lack thereof) are directly driven by job costs, don’t forget to factor in overhead:

  • Office payroll and benefits
  • Building rent or mortgage
  • Utilities
  • Internet
  • Insurance
  • Marketing
  • Equipment and supplies
  • Professional services
  • Professional dues
  • Meals and lodging
  • Shipping and postage
  • Cell plans

Every dollar of overhead reduces your ability to compete and bleeds money from profit margins. Make the time and effort to examine every overhead line item on the profit and loss statement. Look for opportunities to reduce overhead. If it has been 2-3 years since you last shopped the item, whether it is property and casualty insurance, a cell phone plan or your electrical provider, do so.  You may be surprised at the amount of cost you can drive out of your overhead.

Finally, make the time and effort to develop a comprehensive budget incorporating your understanding of your job cost drivers, your targeted sales numbers and your refined overhead. Develop the discipline to compare your actual performance to the budget on a monthly basis, if for no other reason than to refine your understanding as to the cost drivers within your business.

Talent and Risk

This brings me to your pool of talent. FMI Quarterly noted in a 2016 survey of construction firm owners that lack of experienced field supervision and project schedules posed some of the top risks to their bottom line. This points to the critical role that the right talent plays in a company’s success. And, as we know, skilled talent is very hard to come by in this field.

Traditionally, many construction companies have had a busy season and a slow season in which workers are furloughed and start collecting unemployment. Post-Recession, companies have downsized their primary workforce and brought on temporary labor through staffing agencies as needed. Others have changed their business model to eliminate the slow season and keep employees busy year-round.

Whichever hiring and retention option you choose, the main idea is to right size your workforce and make sure you are hiring the right people in the first place. A temp-to-hire option through a staffing agency can reduce the risk of hiring the wrong person who costs money in training and time but ends up quitting a few weeks or months later. The more you can stabilize and train a strong pool of talent, the less likely you are to outlay unemployment, worker’s compensation or other employee costs.

Stay Disciplined

Over the past decade, the construction industry has seen even the biggest and longest-running construction companies fail. A regular study of contractors by risk management consultancy FMI concluded that getting too much work, too fast, with inadequate resources led to inadequate capitalization. Often, the hubris within leadership led to the company’s downfall, assuming they were too big to fail. Imagine the risks, then, to a small operation.

A dedicated CPA can perform an analysis of past jobs and predict the likelihood of profitability on future jobs. If your company is regularly averaging a negative margin, for example, it won’t be long before your company risks its bonding capacity — or worse — is headed toward bankruptcy. Before taking that risk, get to the bottom of your true costs so your company can thrive in a competitive fixed-price environment.

Download the Whitepaper: The Real Cost Savings to Look For in a Fixed Price Environment

Cornwell Jackson’s Tax team can provide guidance on reigning in costs by reviewing your profit and loss statements, work in process and general accounting ledgers. Contact our team with your questions.

Scott Allen, CPA, joined Cornwell Jackson as a Tax Partner in 2016, bringing his expertise in the Construction and Oil and Gas industries and 25 years of experience in the accounting field. As the Partner in Charge of the Tax practice at Cornwell Jackson, Scott provides proactive tax planning and tax compliance to all Cornwell Jackson tax clients. Contact him at Scott.Allen@cornwelljackson.com or 972-202-8032.

SCENARIO #2 – Land Owner vs. Mineral Rights Owner

Oil and Gas Update

A land (surface) owner is approached by an oil company to gain right of way to a development site. The company owns the mineral rights and proposes to build a pipeline. The company will pay for the use of the access land, but will not purchase it.

Oddly, the tax law provides that cash received by the land owner for a right of way is not a sale, and therefore it isn’t a capital gain. Nor is it treated as ordinary taxable income. Instead, it is essentially treated as a return of capital; the cost basis in the land is reduced and the right of way payment, which can be substantial, is tax-free.

Whitepaper Oil Gas Update Tax-Implications of Buying and Selling-Mineral Rights

It is important for the land owner to understand his or her position in this transaction because rarely does one receive money tax-free. The size of the payment may also change the land owner’s personal balance sheet and require careful decisions for financial or estate planning.

Conclusion: Surface owners may receive a sizable payment, tax-free, depending on the value a working interest owner places on access to the development site. The land owner’s tax basis will also decrease.

To view other scenarios and learn more about this topic, visit: Oil & Gas Update: Tax Implications of Buying and Selling Mineral Rights

The oil and gas industry has experienced booms and busts of varying lengths since the dawn of mineral exploration. The current climate for O&G suggests continued consolidation, however forecasts by industry experts anticipate the boom may be back by 2018. For any owners or buyers of mineral interests, the market may be ripe for making deals now — with a careful eye toward the tax implications of buying and selling mineral rights. No two deals are alike, and it’s important to learn the potential tax impact and the types of taxes you may be paying.

Download Now: Oil & Gas Update: Tax Implications of Buying and Selling Mineral Rights

Scott Allen, CPA, joined Cornwell Jackson as a Tax Partner in 2016, bringing his expertise in the Construction and Oil and Gas industries and 25 years of experience in the accounting field. As the Partner in Charge of the Tax practice at Cornwell Jackson, Scott provides proactive tax planning and tax compliance to all Cornwell Jackson tax clients. Contact him at Scott.Allen@cornwelljackson.com or 972-202-8032.

SCENARIO #1 – Leasing vs. Selling Mineral Rights

Oil and Gas Update

An owner of undeveloped or partially developed land (who also owns the mineral rights to the property) is considering whether to lease mineral rights on the undeveloped property or to sell the rights. An E&P company or other lessee wants the right to explore, drill and/or develop any minerals discovered.

If the owner leases the rights, the owner will reserve a royalty interest. For example, the owner may retain one-eighth of the interest of the minerals produced in the form of a royalty (some royalties have been as high as 25 percent in recent years for valuable holdings). The lessee will usually agree to sweeten the deal with a cash payment, commonly referred to as a lease bonus.

Whitepaper Oil Gas Update Tax-Implications of Buying and Selling-Mineral Rights

The owner retains the title to the minerals. The lease bonus is taxed as ordinary income as are the royalty payments once production begins. Even though the transaction is called a lease, and the lessee has a cash outlay for the lease bonus, the lease bonus is non-deductible. The lessee recovers the lease bonus cost through depletion once the property begins production.

If the minerals are not developed during the term of the lease, the lease will expire and the owner contractually regains all mineral rights and has the right to negotiate a lease with another party. However, the lessee may request to extend the lease. The payment to extend the lease, commonly referred to as a delay rental is also taxed as ordinary income by the owner. The lessee must add the delay rental cost to the cost of the lease bonus, and recovers those costs through depletion once production begins.

In the event, the lease expires, the lessee is able to deduct any unrecovered lease bonus and delay rental costs in the year of expiration.

In the rare event that the owner decides to sell the mineral rights (e.g. original owner dies and new owner prefers immediate payment), the income on the sale is treated as capital gains.

Conclusion: Even though capital gains tax rates are generally lower than ordinary income tax rates, generally the mineral interest owner will choose to lease rather than sell because the upside of the royalty far outweighs the favorable tax treatment of capital gains.

To view other scenarios and learn more about this topic, visit: Oil & Gas Update: Tax Implications of Buying and Selling Mineral Rights

The oil and gas industry has experienced booms and busts of varying lengths since the dawn of mineral exploration. The current climate for O&G suggests continued consolidation, however forecasts by industry experts anticipate the boom may be back by 2018. For any owners or buyers of mineral interests, the market may be ripe for making deals now — with a careful eye toward the tax implications of buying and selling mineral rights. No two deals are alike, and it’s important to learn the potential tax impact and the types of taxes you may be paying.

Download Now: Oil & Gas Update: Tax Implications of Buying and Selling Mineral Rights

Scott Allen, CPA, joined Cornwell Jackson as a Tax Partner in 2016, bringing his expertise in the Construction and Oil and Gas industries and 25 years of experience in the accounting field. As the Partner in Charge of the Tax practice at Cornwell Jackson, Scott provides proactive tax planning and tax compliance to all Cornwell Jackson tax clients. Contact him at Scott.Allen@cornwelljackson.com or 972-202-8032.

Oil & Gas Update: Tax Implications of Buying and Selling Mineral Rights

Oil and Gas Update

The oil and gas industry has experienced booms and busts of varying lengths since the dawn of mineral exploration. The current climate for O&G suggests continued consolidation, however forecasts by industry experts anticipate the boom may be back by 2018. For any owners or buyers of mineral interests, the market may be ripe for making deals now — with a careful eye toward the tax implications of buying and selling mineral rights. No two deals are alike, and it’s important to learn the potential tax impact and the types of taxes you may be paying.

Hold ‘em or fold ‘em? It’s not a poker game. It’s the oil and gas industry.

The U.S. oil and gas industry overall may still be in a consolidation phase, but reports from industry watchers like Deloitte noted in fall 2016 that activity may pick up briskly as early as 2018. In Texas, however, the environment looks different, with more hiring and production activity in early 2017 than was seen over the last two years.

Whitepaper Oil Gas Update Tax-Implications of Buying and Selling-Mineral Rights

Anticipating the shift, corporate E&P activity to build up reserves has been happening in West Texas since 2015 with multi-million dollar deals in the Permian Basin and elsewhere. According to Reuters, more than $28 billion in land acquisitions were transacted in West Texas last year, more than triple those in 2015. The players include Exxon and newer E&P players like Parsley Energy.

We are familiar with the variety of scenarios in oil and gas transactions. Each deal is unique, but there are a few common scenarios worth reviewing that demonstrate how the tax law treats transactions differently. Whether you are selling, leasing or buying, now is a good time to consider your options and prepare to act at just the right time.

Following are common scenarios that can occur in oil and gas transactions and their various tax treatments.  Before we introduce these scenarios, it is important to understand the types of ownership interests commonly seen in the oil and gas industry and the differences between them.

  • Royalty interests and over-riding royalties both collect a specified percentage of the gross revenue from the sale of oil and gas produced. Both typically are subject to severance tax that the State levies on oil and gas production. Both may also be subject to the costs of delivering the product to market (i.e. pipeline services fees), but royalty interests are normally not charged with the cost of developing the property nor are they normally charged with the cost of production and maintaining the well.
  • Net profits interests are a hybrid royalty that typically does not receive payment until the working interest owners have realized a pre-determined profit.
  • Working interests collect a specified percentage of revenue and pay their proportionate share of severance tax and the costs of delivering the product to market. However they are responsible for 100% costs of operating the well, producing the oil and gas, drilling and developing the well and maintaining the property. Clearly, the working interest owner takes virtually all of the risk in a very risky business. The tax law does provide the working interest owner with some unusual tax benefits, but those are beyond the scope of this article.

Oil and Gas Transaction Scenarios

The following scenarios are not based on any actual past or present oil and gas transaction, and the information provided does not constitute tax advice. These examples were created to more easily demonstrate the complexity and nuance of taxable or nontaxable mineral interests. Before entering into any contract, consult with your CPA or attorney. Click on any of the scenarios below to learn more about the scenario specific tax implications of buying and selling mineral rights.

SCENARIO #1 – Leasing vs. Selling Mineral RightsSCENARIO #2 – Land Owner vs. Mineral Rights Owner

SCENARIO #3 – Lessee vs. Developer

SCENARIO #4 – Sale of Proved Up vs. Undeveloped Interests

Buyer and Seller Beware

Before leasing, buying or selling mineral rights or access, players must consider the current market. Market fluctuations impact the value of the property and also the options for structuring a successful transaction. The next few years may prove very fruitful for oil and gas in Texas or show mixed results because of global market pricing pressure, the political environment or other factors.

Cornwell Jackson’s Tax team can provide guidance on the structure of land and mineral rights transactions in line with market cycles and your goals. Our team can discuss the merits of certain deals and tax treatments both short-term and long-term. Contact us with your questions.

Download Now: Oil & Gas Update: Tax Implications of Buying and Selling Mineral Rights

Scott Allen, CPA, joined Cornwell Jackson as a Tax Partner in 2016, bringing his expertise in the Construction and Oil and Gas industries and 25 years of experience in the accounting field. As the Partner in Charge of the Tax practice at Cornwell Jackson, Scott provides proactive tax planning and tax compliance to all Cornwell Jackson tax clients. Contact him at Scott.Allen@cornwelljackson.com or 972-202-8032.

Factoring Uncertainty into the Value of Your Business

Businesses currently face numerous uncertainties in the marketplace. As President Trump and Republican congressional leaders work toward fulfilling their campaign promises, tax laws could substantially change, the estate tax could be repealed, and various laws and regulations (including the Dodd-Frank and Affordable Care Acts) could be repealed or revised. Interest rates and inflation could both rise. Economic relationships with other countries could also change. Some of these changes could be good for your business, while others could have negative effects on the value of your business.

History Lesson

Business valuation professionals are no strangers to dealing with market uncertainties — and neither are business owners and investors. The approach to valuing a business interest doesn’t change because of the uncertainties surrounding the current political environment.

Under the market and income approaches, the value of a business continues to be a function of expected economic returns and market, industry and specific company risk. These fundamentals didn’t change during other events that caused uncertainty earlier in the 21st century, such as the terrorist attacks on September 11, 2001, or the Great Recession that lasted from December 2007 to June 2009.

Key Considerations

Here are some considerations when valuing a business in today’s volatile political climate.

Public market returns. The inputs that valuators use to determine discount rates and pricing multiples are typically based, in part, on data from the public stock and bond markets. So far, public markets have reacted to the election results in a positive manner. In general, the proposed changes to taxes and business regulations are likely to lower expenses and increase cash flow for many businesses.

Company-specific risks. A factor that has changed substantially is the risk associated with specific companies and industries — and valuators face challenges as they attempt to measure these risks. For example, proposed regulatory changes might increase the value of companies that operate in the energy sector or the manufacturing sector. On the flipside, they might adversely affect the value of companies that operate in the government contracting or health care sectors.

Known (or knowable) information. Many private business valuations are prepared with a year-end effective date, because it corresponds to the cut-off date for their annual financial statements. Valuation experts can only use information known or knowable at the date of the valuation. But what did we know as of December 31, 2016?

Valuation experts constantly monitor market conditions. Realistically, at the end of 2016 and even today, there are many unknowns. The specific details of tax reforms and other regulatory proposals haven’t been fully put into effect or made into law. Since we can only speculate on what will happen in the future, business valuators must focus on the likelihood that the subject company will achieve its expected future income. The risk that a company won’t meet its financial forecasts is factored into its discount rate.

Contact a Valuation Pro

Experienced appraisers understand the importance of reacting to events that cause added uncertainty with an objective, measured response, rather than a knee-jerk response. In today’s marketplace, they understand that politicians have many divergent plans that may (or may not) be approved or take effect.

In the meantime, business owners and investors should stay calm and carry on. A valuation professional can help you stay atop the latest tax and regulatory changes and understand how they could impact your company’s expected return and risk profile in the future.

Public Markets Respond to the Election Results

Following the election and through the end of 2016 — the effective date for many private business valuations — the Standard & Poor’s 500 Composite Stock Price Index, a leading indicator of large stocks, has responded positively.

Specifically, the S&P 500 index increased from $2,139.56 on November 8, 2016, to $2,163.26 on November 9, 2016, an increase of 1.1% from the closing price on Election Day. As of December 31, 2016, the S&P 500 index had risen to $2,238.83, an increase of 4.6% compared to the closing price on Election Day.

It’s important to note that changes in the S&P 500 index aren’t exclusively tied to the election results — and sometimes the market misjudges the impact of major events. However, the performance of the S&P 500 does provide a general indication of investors’ expectations about expected economic returns and systematic risk that can assist in valuing businesses in today’s uncertain marketplace. When valuing small private firms, however, current events in the public markets can be less of a factor than estimating long-term economic income probabilities.

Republicans’ Policy Brief Explains Repeal-and-Replace Plan

As everyone in America knows by now, President Trump and Republicans in Congress have vowed to repeal and replace the Affordable Care Act (ACA). In its place, they plan to introduce a more market-based system of health coverage.

One question many people have: How will the replacement plan help individuals without employer-provided insurance buy health coverage on the open market? A “Policy Brief” released on February 16 by U.S. House Speaker Paul Ryan (R-WI) provides some details on how Republicans hope to get this done. The main features are:

  • An advanceable and refundable tax credit, and
  • Expanded health savings accounts (HSAs).

This article explains some of the details in the document Ryan released titled, “Obamacare Repeal and Replace: Policy Brief and Resources.”

Current Premium Tax Credit

Under current law, lower-income individuals who aren’t eligible for other qualifying health coverage or “affordable” employer-sponsored insurance plans, which provide “minimum value,” are allowed to claim a refundable premium tax credit to subsidize the purchase of certain health insurance plans through a state-established American Health Benefit Exchange or through federally-facilitated Exchanges. This credit is also known as a health care affordability tax credit or premium assistance credit.

The credit generally is payable in advance directly to the insurer on the individual’s behalf, with the taxpayer reconciling the actual credit that he or she is due on a timely filed return. Alternatively, individuals can elect to purchase health insurance out-of-pocket and apply to the IRS for the credit at the end of the tax year. There are a number of complex steps involved in computing the credit.

What Are Refundable and Advanceable Tax Credits?

A refundable tax credit involves a taxpayer receiving a payment from the federal government even if the credit amount exceeds the amount the individual owes in taxes.

An advanceable tax credit provides financial help in advance of filing a tax return. The Republicans’ Policy Brief states that “advanceability is a key feature” of its tax credit proposal “because many Americans need help paying their monthly premiums. They cannot afford to wait until they file their taxes the following year to get assistance.

Proposed Universal Health Care Tax Credit

According to the Policy Brief, the Republican plan would create a new, advanceable, refundable tax credit, under a new tax code section to assist with the purchase of health insurance on the individual insurance market.

The credit would be available to all qualified individuals regardless of income, with older people receiving a higher credit amount than younger individuals, to reflect the higher cost of insurance as people age. A qualified individual would be a citizen or qualified alien who isn’t eligible for coverage through other sources, specifically through an employer or government program.

Taxpayers also would be able to receive credits for their dependents — including children up to the age of 26. (Incarcerated individuals wouldn’t be eligible for the credit.)

The credit could be used to purchase an eligible plan approved by a state and sold in the individual insurance market, including catastrophic coverage. However, the credit wouldn’t be available for plans that cover abortion.

In addition, if an employer doesn’t subsidize health care continuation coverage under the Consolidated Omnibus Budget Reconciliation Act (COBRA), an individual could use the credit to help pay unsubsidized COBRA premiums while he or she is between jobs.

If the individual doesn’t use the full value of the credit, he or she could deposit the excess amount into an HSA (see information below for more about HSAs).

ACA Penalties Would Be Repealed

The ACA penalty taxes for the individual mandate and the employer mandate would be repealed immediately. To provide relief during a transition period, Americans who are eligible for the ACA subsidy would be able to use their credit for expanded options, including currently prohibited catastrophic plans. Additionally, the ACA subsidies would be adjusted slightly to provide additional assistance for younger eligible individuals and reduce the over-subsidization that older people are receiving. Restrictions on federal funding for abortions would be included for the transition period.

HSA Rules Today

In general, eligible individuals may, subject to statutory limits, make “above-the-line” deductible contributions to an HSA. Other people (for example, family members) may also contribute on behalf of eligible individuals, and employers can, too. Eligible individuals are those who are covered under a high deductible health plan (HDHP) and aren’t covered under any other health plan that isn’t a HDHP, unless the other coverage is certain permitted insurance (for example, worker’s compensation).

For 2016 and 2017, an HDHP is a health plan with an annual deductible that isn’t less than:

  • $1,300 for individual coverage and
  • $2,600 for family coverage.

Maximum out-of-pocket expenses under the plan for 2016 and 2017 can’t exceed:

  • $6,550 for individual coverage and
  • $13,100 for family coverage.

The maximum annual HSA deductible contribution is:

  • $3,350 for 2016 (for family coverage, $6,750) and
  • $3,400 for 2017 (for family coverage, it remains $6,750).

The maximum HSA contribution is increased by an additional catch-up contribution amount (computed on a monthly basis) for individuals age 55 or older as of the last day of the calendar year who aren’t enrolled in Medicare. The catch-up contribution amount is $1,000.

Distributions from an HSA that are used exclusively to pay the qualified medical expenses of an eligible individual (account holder) or his or her spouse or dependents are excludable from gross income.

What Are “Qualified Medical Expenses?”

Qualified medical expenses are unreimbursed expenses for medical care as defined under the medical expense deduction rules. Medicine or drugs are qualified expenses only if they’re prescribed (whether or not over-the-counter) or if they are insulin. Qualified medical expenses, which must be incurred after the HSA is established, don’t include insurance premiums other than premiums for qualified long-term care insurance, COBRA and coverage while the eligible individual is receiving unemployment compensation.

Distributions not used for qualified medical expenses are subject to tax, and also are subject to an additional 20% for distributions reported on Form IRS 8853 unless they’re made after the individual attains age 65, dies or becomes disabled.

Proposed HSA Changes

The Policy Brief says Republicans want more people to be able to utilize HSAs, and expand how they and their families can use them. Specific proposals would:

  • Allow HSA distributions to be used for “over-the-counter” health care items.
  • Increase the maximum HSA contribution limit to equal the maximum out of pocket amounts allowed by law.
  • Allow both spouses to make catch-up contributions to the same HSA. Specifically, if both spouses are eligible for catch-up contributions and either has family coverage, the annual contribution limit that could be divided between them would include both catch-up contribution amounts. For example, they could agree that their combined catch-up amount would be allocated to one spouse to be contributed to that spouse’s HSA. In other cases, as under present law, a spouse’s catch-up contribution amount wouldn’t be eligible for division between the spouses. It would have to be made to the HSA of that spouse.
  • Provide that, if an HSA is established during the 60-day period beginning on the date that an individual’s coverage under a high deductible health plan begins, then the HSA would be treated as having been established on the date that such coverage begins for purposes of determining if an expense incurred is a qualified medical expense. Thus, if a taxpayer establishes an HSA within 60 days of the date that his or her coverage under a high deductible health plan begins, any distribution from an HSA used as a payment for a medical expense incurred during that 60-day period after the high deductible health plan coverage began would be excludible from gross income as a payment used for a qualified medical expense — even though the expense was incurred before the date the HSA was established.

The Republicans’ repeal-and-replace plans for the ACA still appear to be a work in progress. For example, under the Patient Freedom Act of 2017, a bill introduced by Senator Bill Cassidy (R-LA) and Senator Susan Collins (R-Maine) in January, contributions to expanded HSAs would be nondeductible. They would be set up as Roth HSAs.

However, the Policy Brief provides some clues as to what the future may hold. Stay tuned.

How S Corporations Can Save on Federal Employment Taxes

If you own an unincorporated small business, you may be getting fed up with high self-employment (SE) tax bills. One way to lower your SE tax liability is to convert your business to an S corporation.

SE Tax Basics

Sole proprietorship income as well as partnership income that flows through to partners (except certain limited partners) is subject to SE tax. These rules also apply to single-member limited liability companies (LLCs) that are treated as sole proprietorships for federal tax purposes and multimember LLCs that are treated as partnerships for federal tax purposes.

For 2017, the maximum federal SE tax rate of 15.3% hits the first $127,200 of net SE income. That rate includes 12.4% for the Social Security tax and 2.9% for the Medicare tax.

The rate drops after SE income hits $127,200 because the Social Security tax component goes away above the Social Security tax ceiling of $127,200 for 2017 (up from $118,500 for 2016). But the Medicare tax continues to accrue at a 2.9% rate, and then it increases to 3.8% at higher income levels because of the 0.9% additional Medicare tax. (This 0.9% tax applies to the extent that wages and SE income exceed $200,000 for singles and heads of households, $250,000 for married couples filing jointly, and $125,000 for married couples filing separately. The tax is part of the Affordable Care Act, so it likely will disappear if the ACA is repealed or replaced.)

We’ll refer to the Social Security and Medicare taxes collectively as federal employment taxes.

Example 1

Suppose your sole proprietorship is expected to generate net SE income of $200,000 in 2017. Your SE tax bill will be $21,573 [($127,200 x 15.3%) + ($72,800 x 2.9%)]. That’s a sizable amount — and it’s likely to get bigger every year due to inflation adjustments to the Social Security tax ceiling and the growth of your business.

SE Tax Reduction Strategy

To lower your SE tax bill in 2017 and beyond, consider converting your unincorporated small business into an S corporation and then paying yourself (and any other shareholder-employees) a modest salary. Distribute most (or all) of the remaining corporate cash flow to the shareholder-employee(s) as federal-employment-tax-free distributions. Here’s why this SE tax-saving strategy works.

For compensation paid to an S corporation employee in 2017, including an employee who also is a shareholder, the FICA tax rate is 7.65% on the first $127,200. This includes 6.2% for the Social Security tax and 1.45% for the Medicare tax. Above $127,200, the rate drops to 1.45% because the Social Security tax component goes away. But the 1.45% Medicare tax component continues indefinitely. At higher wage levels, S corporation employees must also pay the additional 0.9% Medicare tax. FICA tax is paid by the employee through withholding from employee paychecks.

The employer then pays in matching amounts of Social Security tax and Medicare tax (other than the additional 0.9% tax) directly to the U.S. Treasury. So the combined FICA and employer rate for the Social Security tax is 12.4%, and the combined rate for the Medicare tax is 2.9%, rising to 3.8% at higher income levels. These are the same as the SE tax rates. That’s the bad news.

The good news is that S corporation taxable income passed through to a shareholder-employee and S corporation cash distributions paid to a shareholder-employee aren’t subject to federal employment taxes. Only wages paid to shareholder-employees are subject to federal employment taxes.

This favorable federal employment tax treatment places S corporations in a potentially more favorable position than businesses that are conducted as sole proprietorships, partnerships or LLCs (if treated as sole proprietorships or partnerships for federal tax purposes).

Example 2

Assume the same facts as the previous example, except this time you operate your business as an S corporation that generates net income of $200,000 before paying your salary of $60,000. (Assume you could find somebody to do the same work for about that amount.) Only the $60,000 salary amount is subject to federal employment taxes, which amount to $9,180 ($60,000 x 15.3%). That’s significantly lower than you’d pay as a sole proprietor ($21,573).

The Caveats

This tax-saving strategy isn’t right for every business. Here’s some food for thought as you consider changing your business structure:

1. Operating as an S corporation and paying yourself a modest salary will save SE tax as long as your salary can be proven to be reasonable, albeit on the low side of reasonable. Otherwise you run the risk of the IRS auditing your business and imposing back employment taxes, interest and penalties.

However, you can help minimize the risk that the IRS will successfully challenge your stated salary amounts if you gather objective market evidence to demonstrate that outsiders could be hired to perform the same work for salaries equal to what you’re paying shareholder-employee(s).

2. A potentially unfavorable side effect of paying modest salaries to S corporation shareholder-employee(s) is that it can reduce your ability to make deductible contributions to tax-favored retirement accounts. If the S corporation maintains a Simplified Employee Pension (SEP) or traditional profit-sharing plan, the maximum annual deductible contribution for each shareholder-employee is limited to 25% of his or her salary.

So, the lower the salary, the lower the maximum contribution. However, if the S corporation sets up a 401(k) plan, paying modest salaries won’t preclude generous contributions.

3. Operating as an S corporation will require some extra administrative hassle. For example, you must file a separate federal return (and possibly a state return, too).

In addition, transactions between S corporations and shareholders must be scrutinized for potential tax consequences, including any transfers of assets from an existing sole proprietorship or partnership to the new S corporation. State-law corporation requirements, such as conducting board of directors meetings and keeping minutes, must be respected.

In most cases, these drawbacks are far less burdensome than the potential SE tax savings. Your tax advisor can help you minimize the downsides and work through the details.

Weighing the Upsides and Downsides

Converting an existing unincorporated business into an S corporation to reduce federal employment taxes can be a smart tax move under the right circumstances. That said, consult your tax advisors to ensure that all the other tax and legal implications are considered before making the switch.

Mechanics of Converting to S Corporation Status

To convert an existing sole proprietorship or partnership to an S corporation, a corporation must be formed under applicable state law and business assets must be contributed to the new corporation. Then an S election must be made for the new corporation by a separate form with the IRS by no later than March 15, 2017, if you want the business to be treated as an S corporation for calendar year 2017.

If you currently operate your business as a domestic limited liability company (LLC), it generally isn’t necessary to go through the legal step of incorporation in order to convert the LLC into an entity that will be treated as an S corporation for federal tax purposes. That’s because the IRS allows a single-member LLC or multimember LLC that otherwise meets the S corporation qualification rules to simply elect S corporation status by filing a form with the IRS. However, if you want your LLC to be treated as an S corporation for calendar year 2017, you also must complete this paperwork by no later than March 15, 2017.

Defining True Job Costs for Construction Bids

At the heart of a profitable construction company is an accurate bidding process. An accurate bid involves much more than your expected materials or your sub-contractor and labor costs. There are also other variables to consider related to the site, the weather, the subs (or GC), customer expectations and how you expect your competitors will bid. The more you factor in those variables across all bids, the closer you can get to a bid that is competitive but will also match true costs.

Construction companies can get very efficient at estimating the expected costs per job; however, they don’t always factor in “hidden” job-related costs in developing the bid:

  • Labor-related benefits
  • Fleet vehicles (owned or rented) and maintenance
  • Fuel
  • Small tools and other job consumables
  • General liability insurance
  • Safety program

If these costs are not considered, the company is at risk for missing the expected job profit, particularly in longer-lived jobs.

Reducing Job Costs and Increasing Margins

Identify the areas where your company has historically experienced cost overruns and develop incentive plans for the project management or field supervisory team to minimize those costs. If their bonuses are tied to the following key performance indicators, it can help to improve per job realization:

  • Cost-effective materials sourcing
  • Efficient and timely use of labor
  • Waste reduction
  • Safety management
  • Early troubleshooting on budget or timeline concerns
  • Timely work in process updates
  • Quality standards (minor punch lists)

If you have never instituted a specific accountability program for these KPIs, develop standards for two or three and incorporate them into the next round of new work. If there is already some level of accountability in place, audit the results and look for additional areas for improvement.

When designing the incentive plan, it is important to keep parameters in place so that cost savings achieved do not come at higher costs in another category. For example, a labor savings incentive program may inadvertently incentivize the foreman to bypass safety protocols. An accident on the job will potentially result in long-term increased costs in worker’s compensation insurance (not to mention legal claims) that far outweigh the labor savings. Additionally, design the program so that any bonuses are not paid until the warranty period has run in order to assure cost savings do not come at the cost of quality.

Does your company schedule a realization meeting after every completed job? These meetings can identify jobs that provided a healthy margin as well as jobs that lost money. By reviewing past performance, you can get a better sense of where bidding and costs were not aligned, the drivers for cost overruns and even whether a project type is still worth pursuing. For these meetings to be effective, however, you have to have accurate cost reporting. When looking at past jobs in which a company made or lost money, it’s a good exercise to understand exactly what drove the costs. Even though every company at some point has experienced a freak of nature, an accident or a materials shortage, there are usually more cost drivers that the company and its management can actually control.

One of the other areas that a company can review — and this ties to a longer-term shift in the business strategy — is the type of job bid.

Conditions change, and the jobs that used to be lucrative for a company can slowly whittle away margins due to higher competition, compliance issues or threadbare budgets. At the company I served, it was determined that K-12 school construction projects had experienced tightened margins, shortened project timelines and increased competition. Shifting the segment focus to junior college improvement projects, a market segment with less competition, helped the company to improve profit margins.

Continue Reading: Balancing Overhead, Budgeting and Risk to Increase Project Profits

Cornwell Jackson’s Tax team can provide guidance on reigning in costs by reviewing your profit and loss statements, work in process and general accounting ledgers. Contact our team with your questions.

Scott Allen - Construction Industry Expert

Scott Allen, CPA, joined Cornwell Jackson as a Tax Partner in 2016, bringing his expertise in the Construction and Oil and Gas industries and 25 years of experience in the accounting field. As the Partner in Charge of the Tax practice at Cornwell Jackson, Scott provides proactive tax planning and tax compliance to all Cornwell Jackson tax clients. Contact him at Scott.Allen@cornwelljackson.com or 972-202-8032.

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