Legal issues continue for the Affordable Care Act

Is the Patient Protection and Affordable Care Act (PPACA) under siege again?  It appears so. 

With two District Courts, the Fourth Circuit and the DC Circuit, splitting on the matter of whether the health insurance premium tax credit can be provided to individuals who obtain individual coverage through a federally operated health insurance exchange, the issue may be forced the back in front of the Supreme Court. 

This may prove to be a very important case for folks in South Carolina as the State of South Carolina has chosen to allow the federal government to operate the health insurance exchange in this state.  Hanging in the balance, among other things, is the employer mandate for employers located in states, like South Carolina, that are served by a federally operated exchange. 

A ruling from the Supreme Court similar to the ruling that has come out of the DC Circuit would almost certainly undermine the individual mandate, as well. 

We will keep our eyes on the issue as it continues to move through the courts, and we will strive to do our best to keep our clients informed and up to speed on the changes that may affect them.  If you have a question about how the PPACA may affect you or your business, please do not hesitate to contact us at your earliest convenience.

New vacation rentals laws in South Carolina

Summer time.  It is the time of the year when we pack up the family and take a trip down to the beach for that well deserved vacation.  Or maybe not.  Perhaps you are one of those people that owns a home down at the beach, and summer time is when you take that opportunity to rent out your home to all of those beach goers in search of that family vacation.  Well if you are, there has been a lot of talk in the last month about the impact of two new laws, which Gov. Nikki Haley signed into law this past month, that may affect how you handle the rental of your home.

On June 9, 2014, Gov. Nikki Haley signed into law the Fairness in Lodging Act (SB 985).  Basically, the law gives municipalities and counties additional enforcement authority with respect to accommodations tax laws.  The underlying concern was that some individuals that provide residential accommodations to tourist are failing to collect and remit the appropriate accommodations taxes associated with these rentals.  Below is an article from the Sun News written by Dawn Bryant that talks a little about the issue and why the law was put into place.

On that same date Gov. Haley also signed into law SB 437.  SB 437 provides property tax relief to home owners that rent their personal residences by allowing them to keep their eligibility for the four percent property tax assessment. As always, there are certain requirements that have to be met with the key issue being the length of time the property is rented.  With the enactment of SB 437 that time frame has now been expanded to 72 days.  Below is an article from the Post and Courier written by David Slade that talks about some of the concerns related to SB 437.  Bear in mind his article was written before the law was signed by Gov. Haley.

At Burch, Oxner, Seale Co., we diligently strive to help you keep pace with the ever changing tax environment.  That environment often includes changes to local and state laws similar to these.  If you have a question or concern in regards to how your rental property is being handled or whether you are taking advantage of all the tax breaks that are available to you, we ask that you give us a call at your convenience.  We will be glad to discuss, among other things, your obligations related to the South Carolina Accommodations Tax and review your property tax assessment to ensure you are paying the appropriate amount of property taxes.  As always, we look forward to hearing from you.           

New law aims to enforce tax collections on vacation rentals by owner

June 23, 2014

By Dawn Bryant

South Carolina has a new law aiming to crack down on homeowners who rent their properties to tourists but don’t collect accommodations and sales taxes, a problem local tourism leaders say has grown since the Great Recession.

The Fairness in Lodging Act, introduced by Sen. Ray Cleary and signed by Gov. Nikki Haley earlier this month, gives cities and counties more means to go after homeowners they suspect aren’t collecting the required taxes by sharing info on them with the S.C. Department of Revenue, giving notice in property tax bills, assessing fines and asking “rental by owner” websites to post that the rentals must include local and state taxes.

Supporters of the law say it will help local and state governments collect taxes they are owed. It also could take away an advantage homeowners who don’t collect the taxes have over rental companies in price, they say. Horry County officials don’t know how much money the county might be missing out on, and a county committee plans to talk about the new law in early August.

“Because tax avoiders don’t identify themselves, it’s difficult to quantify the impact but we estimate there are several million dollars of taxes owed but not paid,” said Brad Dean, president of the Myrtle Beach Area Chamber of Commerce, which supports the new law. “The Fairness in Lodging Act won’t end tax avoidance, but it will enhance the ability of local and state government to enforce the law and collect taxes owed by commercial property owners.”

Read more here:


Owner-occupied homes in desirable vacation destinations such as Isle of Palms could be rented for up to 72 days per year and still maintain the tax status of a primary residence – if Gov. Nikki Haley signs legislation changing the limit from the current 14 days.

June 4, 2014

By David Slade

The state Legislature has approved a tax break meant for people who live at the beach but rent out their homes for part of the year.

The bill, which awaits action by Gov. Nikki Haley, would allow people to pay “owner-occupant” property taxes even if their homes are rented out up to 72 days yearly.

Currently, homeowners pay sharply higher property taxes if they rent out their homes for more than 14 days each year because the property would be taxed as a rental property.

The 72-day rule would apply to any property in the state, but beach house rentals have been the focus of the legislation.

Lawmakers supporting the rule change said some coastal homeowners need to rent their residences for longer periods of time in order to afford soaring flood, wind and hail insurance costs.

The bill originally allowed 100 rental days but was changed to allow 72 days – roughly the length of summer vacation – as it went through a series of amendments.

Melinda Mitchell, who lives on Isle of Palms, said Haley should veto the bill because it doesn’t go far enough. Mitchell said South Carolina should treat a property the same as the federal government – as a residence as long as it’s rented for less than half the year.

“I usually rent my home for four to five months each year to help pay bills, including over $10,000 per year for insurance,” she said.

If the home is taxed as a commercial property, Mitchell said that would add $20,000 to her tax bill.

“How is this (legislation) being sold as a tax break?” she said.

Read more here:


Will the start of the 2014 Tax Season be delayed?

It isn’t even July yet and there is already talk in the halls of Washington about a delay for the upcoming tax filing season (2014).  While there have been some positive steps on a number of issues that affect many taxpayers, it appears the bulk of the work related to a number of tax extenders will not get completed until the “lame duck session” of Congress that occurs after this year’s November elections.  Below is an article by Michael Cohn, the editor-in-chief of, which points out some of the reasons as to why we may see another delay in the start of the 2014 tax filing season similar to what we saw with the 2012 tax filing season.


Washington, D.C. (June 13, 2014)

By Michael Cohn, Editor-in-Chief,

Sen. Charles Grassley, R-Iowa, the former chairman of the Senate Finance Committee, is warning that tax season could be delayed next year if approval of tax extenders legislation is put off until after the mid-term elections in November.

Grassley pointed out in a speech on the Senate floor Thursday that Senate Majority Leader Harry Reid, D-Nev., expressed the view last week that legislation for extending dozens of expired tax breaks is unlikely to be passed until a lame-duck session following the election. “The majority leader blames this on the minority, but it is the majority leader that is uniquely situated under Senate rules to determine what legislation will be considered on the Senate floor,” said Grassley.

“The majority leader’s excuse for not proceeding to extenders before the lame duck is that Republicans are seeking to offer amendments unrelated to tax extenders. This excuse simply does not fly.”

Senate Minority Leader Mitch McConnell, R-Ky., has also voiced skepticism about a tax extenders bill passing this year before the election, given the basic disagreement between both parties over tax reform priorities. Leaders of the Senate Finance Committee have announced a series of hearings over the summer to move ahead on tax reform (see Senate Leaders Plot Path for Tax Reform).

For the full article, continue here:

The Exceptional Needs Children Scholarship Credit

Time is running out for those of you interested in claiming the exceptional needs children scholarship credit.  As of June 2, 2014, almost $4.5 million of the allotted $8 million credit remains to be claimed by eligible claimants.  For those of you that don’t know about the credit, here is a little explanation.

Temporary Budget Proviso 1.85 provides a South Carolina income tax credit for contributions made to nonprofit scholarship funding organizations between the period of January 1, 2014 and June 30, 2014.  The contributions to the nonprofit scholarship funding organizations are to provide grants for tuition, transportation, and textbooks to exceptional needs children enrolled in eligible schools.  The budget proviso set aside a total of $8 million in credits that have to be claimed by June 30, 2014. 

To claim the credit, taxpayers must apply to the SC Department of Revenue by completing a Form TC-57A.  The credits are approved among eligible claimants on a first-come, first-serve basis according to the date and time the applications are received by the SC Department of Revenue.  The most credit an eligible taxpayer can receive may not exceed 60% of the taxpayer’s total 2014 state income tax liability.  In addition, the credit is not refundable.  A list of nonprofit scholarship funding organizations in good standing and approved independent schools can be found on the Education Oversight Committee’s website ( 

This is an excellent opportunity for those of you who are looking for a way to help exceptional needs children while still meeting your state income tax obligations.  If you are interested in how this credit may benefit you, please give us a call so that we can assist you in projecting your anticipated tax liability thereby allowing you to maximize your contribution.

S-Corporation Compensation–What is reasonable compensation?

One of the most complicated questions CPAs get asked by S-Corporation owners often centers around the concept of reasonable compensation.  What is “reasonable compensation”?  There really is no right or wrong answer as each situation is unique.  Over the years, most CPAs have learned that taking zero compensation and large distributions is generally frowned upon by the IRS as there have been numerous cases highlighting this issue.  However, in recent years, the IRS has begun to take on more cases in which some amount of compensation was paid, and their efforts have been fruitful.  The following is an article written by Chris Hesse, CPA that was posted on an AIPCA Insights blog.  Chris is currently serving as the chairman of the S-Corporation Technical Resource Panel for the AICPA.  Hopefully this article will provide you some insight into the recent success of the IRS on the issue of reasonable compensation.

James Sheehy, CPA


Via AICPA Insights Blog

Another Lesson on Unreasonably Low Compensation

Posted by Guest Blogger on Jul 25, 2013 in Guest Blogger, Tax

Payroll tax collection continues to vex the Internal Revenue Service despite several court cases that have resulted in rulings favorable for the IRS regarding unreasonably low compensation. A recent high profile case was David E. Watson, P.C. v. United States on which the Eighth Circuit ruled in 2012. Watson was an indirect partner in a CPA firm, practicing through an S corporation that paid him $24,000 of salary per year and between $175,000 and $203,000 in profit distributions. The court adjusted his compensation to $93,000.

It isn’t hard to see why shareholders of S corporations attempt to justify wage levels below what the IRS considers “reasonable compensation” (assuming the understated compensation is below the FICA wage base). Both the S corporation and employee save the 7.65% FICA and Medicare taxes on the wages not reported.

Another recent case is Herbert v. Commissioner. Herbert received between $24,000 and $29,000 of wages for the years 2004 through 2006. In 2007, he received $2,400 of wages. Although the Tax Court noted that the corporation lost money or earned very little income in each of the years, and the corporation closed down in 2009, the Court increased the taxable compensation for 2007. The IRS wanted to reclassify all of the draws from the S corporation for 2007 as additional wages (i.e., an additional $52,600). Ultimately, the judge averaged the petitioner’s wages for 2002 through 2006 to arrive at $30,445 as a reasonable wage. (The business was owned by someone else in 2002 and 2003.)

It didn’t help matters that Mr. Herbert used the draws to pay corporate expenses personally. He lost, misplaced or never kept receipts for many corporate expenses he paid with cash. The Court accepted Herbert’s testimony that he in fact paid significant corporate expenses with cash using funds received from the corporation. Nonetheless, the judge also believed that the wages of $2,400 were too low.

The result? Herbert was found to have under-reported his wages, even though the amount of cash drawn out of the corporation covered corporate expenses. If he had maintained a better set of books, paid all of the corporate expenses with corporate (rather than what became to be personal) funds, he wouldn’t have had distributions from the corporation to himself.

Although the wages were quite low, the fact of the matter is the business was failing. There wasn’t an adequate cash flow to pay wages and expenses. By shuffling funds and taking money personally, Mr. Herbert created a payroll tax liability where such liability shouldn’t have existed.

Payroll tax reduction or avoidance is, perhaps, a major reason for the popularity of S corporation status for an operating entity, even though the formation of an LLC under state law provides similar liability protection for the sole proprietor. The IRS projects that 4.6 million Forms 1120-S will be filed for 2012, compared to 3.6 million Forms 1065 (partnership). 

As part of its tax reform efforts, Congress is evaluating the continuing treatment of the bottom-line S corporation as not subject to payroll taxes or self-employment tax. The AICPA will be closely monitoring any developments and keeping you up to date through its tax reform page and other communications.

Chris Hesse, CPA, Partner, CliftonLarsonAllen. Chris is with CliftonLarsonAllen’s Federal Tax Resource Group serving all offices of the firm. FTRG is a firm wide group that assists all offices of the firm on federal income tax matters, in addition to drafting CPE material for in-house presentation.  Chris is also chairman of the S Corporation Technical Resource Panel for the AICPA.

SC – Abandoned Buildings Rehab Tax Credit


Nowadays, it seems that most cities, both large and small, have become more focused on revitalizing their downtown areas. Here in Florence, SC, we have seen this first hand with the many projects that have been started in the downtown area.  This includes the recently opened hotel and restaurant which the City sees as a cornerstone to jump starting these revitalization efforts.  One of the many problems with revitalization is that it is usually expensive as developers work to try and balance the historical significance of an area with their need to provide more modern facilities that their new tenants will expect.  Fortunately, here in South Carolina, the State has enacted legislation that may help offset some of those costs.  The recently created credit for the rehabilitation of abandoned buildings may be the very thing which will attract the right kind of developers, allowing these revitalization programs to move forward.  The following article helps explain the credit, and its requirements, in more detail.

James Sheehy, CPA

Via CCH Tax Research:

State Tax Day – Current,S.33,South Carolina—Multiple Taxes: Credit Created for Rehabilitation of Abandoned Buildings,(Jun. 14, 2013)

Recently enacted South Carolina legislation creates a credit for taxpayers who rehabilitate qualified abandoned buildings against either (1) South Carolina corporate or personal income taxes, corporate license fees, taxes on building and loan associations, or a combination thereof, or (2) real property taxes levied by local taxing entities.

The taxpayer must incur the following expenses to qualify for the tax credit:

  • more than $250,000 for buildings located in the unincorporated areas of a county or in a municipality in the county with a population of more than 25,000;
  • more $150,000 for buildings located in the unincorporated areas of a county or in a municipality in the county with a population of at least 1,000, but not more than 25,000; and
  • more than $75,000 for buildings located in a municipality with a population of less than 1,000.

The credit applies only to abandoned building sites or phases or portions thereof put into operation for income-producing purposes. The construction or operation of a charter school, private or parochial school, or other similar educational institution qualifies for the credit. The construction of a single-family residence is not an income-producing purpose and does not qualify for the credit.

The credit provisions are repealed on December 31, 2019. Any carryforward credits will continue to be allowed until the five (income)- or eight (real property)-year time period is completed.

Income Tax Credit

To qualify for the income tax credit, the taxpayer must file a Notice of Intent to Rehabilitate before incurring its first rehabilitation expenses at the building site. The credit amount is determined as follows:

  • if the actual rehabilitation expenses incurred in rehabilitating the building site are between 80% and 125% of the estimated rehabilitation expenses set forth in the Notice of Intent to Rehabilitate, the credit amount is 25% of the actual rehabilitation expenses incurred at the building site;
  • if the actual rehabilitation expenses exceed 125% of the estimated expenses set forth in the Notice of Intent to Rehabilitate, the taxpayer qualifies for the credit based on 125% of the estimated expenses as opposed to the actual expenses it incurred in rehabilitating the building site; and
  • if the actual rehabilitation expenses are below 80% of the estimated rehabilitation expenses, the credit is not allowed.

The entire credit is earned in the taxable year in which the applicable phase or portion of the building site is placed in service but must be taken in equal installments over a five-year period beginning with the tax year in which the applicable phase or portion of the building site is placed in service.

Unused credit may be carried forward for the succeeding five years.

The entire credit earned may not exceed $500,000 for any taxpayer in a tax year for each abandoned building site. This limitation applies to each unit or parcel deemed to be an abandoned building site. Taxpayers that qualify for both this new credit and the credits allowed pursuant to the Textiles Communities Revitalization Act or the Retail Facilities Revitalization Act may only claim one of the three credits.

The credit is limited in use to 50% of either: (1) the taxpayer’s income tax liability for the taxable year if the taxpayer claims the credit as a credit against income tax, or taxes on associations, or both; or (2) the taxpayer’s corporate license fees for the taxable year if the taxpayer claims the credit as a credit against license fees.

A taxpayer may transfer any applicable remaining credit associated with the rehabilitation expenses incurred with respect to that part of the site to the lessee if the taxpayer leases the building site or part of the building site.

Taxpayers that are partnerships or limited liability companies taxed as a partnership may pass the credit through to the partners or members, and the credit may be allocated among any of the partners or members.

Local Property Tax Credit

To qualify for the credit against the local property tax, the taxpayer must file a Notice of Intent to Rehabilitate before incurring its first rehabilitation expenses at the building site.

Once the Notice of Intent to Rehabilitate has been provided to the county or municipality, the municipality or the county first will determine, by resolution, the eligibility of the building site and the proposed rehabilitation expenses for the credit.

A proposed rehabilitation of a building site must be approved by a positive majority vote of the local governing body. If the county or municipality determines that the building site and the proposed rehabilitation expenses are eligible for the credit, there must be a public hearing and the municipality or county will approve the building site for the credit by ordinance.

Before approving a building site for the credit, the municipality or county must first make a finding that the credit does not violate a covenant, representation, or warranty in any of its tax increment financing transactions or an outstanding general obligation bond issued by the county or municipality.

The local real property tax credit is equal to 25% of the actual rehabilitation expenses incurred at the building site multiplied by the local taxing entity ratio of each local taxing entity that has consented to the credit, if the actual rehabilitation expenses incurred in rehabilitating the building site are between 80% and 125% of the estimated rehabilitation expenses set forth in the Notice of Intent to Rehabilitate. If the actual rehabilitation expenses are greater than 125% of the estimated expenses set forth in the Notice of Intent to Rehabilitate, the taxpayer qualifies for the credit based on 125% of the estimated expenses as opposed to the actual expenses it incurred in rehabilitating the building site. However, if the actual rehabilitation expenses are below 80% of the estimated rehabilitation expenses, the credit is not allowed.

The ordinance must provide for the credit to be taken as a credit against up to 75% of the real property taxes due on the building site each year for up to eight years.

The credit against real property taxes for each applicable phase or portion of the building site may be claimed beginning with the property tax year in which the applicable phase or portion of the building site is first placed in service.

A taxpayer may not claim the credit if the taxpayer owned the otherwise-eligible building site when the site was operational and immediately prior to its abandonment.


“Abandoned building” is defined as a building or structure, which clearly may be delineated from other buildings or structures, at least 65% of the space in which has been closed continuously to business or otherwise nonoperational for income-producing purposes for a period of at least five years immediately preceding the date on which the taxpayer files a Notice of Intent to Rehabilitate. For purposes of this credit, an abandoned building is not a building or structure with an immediate preceding use as a single-family residence.

However, any portion of the building or structure that was operational and used as a storage or warehouse for income-producing purposes does not qualify for the credit.

“Building site” is defined as the abandoned building together with the parcel of land upon which it is located and other improvements located on the parcel. However, the area of the building site is limited to the land upon which the abandoned building is located and the land immediately surrounding such building used for parking and other similar purposes directly related to the building’s income-producing use.

“Rehabilitation expenses” is defined as the expenses or capital expenditures incurred in the rehabilitation, demolition, renovation, or redevelopment of the building site, including, without limitations, the renovation or redevelopment of existing buildings, environmental remediation, site improvements, and the construction of new buildings and other improvements on the building site.

However, the definition does not include the cost of acquiring the building site or the cost of personal property located at the building site. In order for expenses associated with a building site to qualify for the tax credit, the abandoned buildings on the building site must be either renovated or redeveloped.

Rehabilitation expenses associated with a building site that increases the amount of square footage on the building site in excess of 200% of the amount of square footage of the buildings that existed on the building site as of the filing of the Notice of Intent to Rehabilitate will not be considered rehabilitation expenses for purposes of calculating the amount of the credit. Additionally, demolition expenses will not be considered a rehabilitation expense for purposes of calculating the amount of the credit if the building being demolished is on the National Register for Historic Places.

The “Notice of Intent to Rehabilitate” is a written letter, indicating the taxpayer’s intent to rehabilitate the building site. It must include the location of the building site, the amount of acreage involved in the building site, the amount of square footage of existing buildings involved in the building site, and the estimated expenses to be incurred in connection with rehabilitation of the building site. The notice must also set forth information as to which buildings the taxpayer intends to renovate and whether new construction is to be involved.

H.B. 3093, Laws 2013, effective June 11, 2013, applicable to tax years beginning after 2012.

Payroll audits aimed at 1099 workers (via Wall Street Journal)

Small businesses need to know the rules on contract workers vs employees – ignoring the rules can be costly as this article from the Wall Street Journal points out:

Payroll Audits Put Small Employers on Edge

Tax Crackdown Comes as Use of Contract Workers Grows; Companies Find Rules Unclear


Internal Revenue Service auditors showed up with little warning at Brian Robinson’s staffing firm in Atlanta a year ago, seeking to verify that a dozen outside contractors he had hired to handle his information-technology services weren’t, in fact, full-time staffers.

The audit was part of a government crackdown on employers who misclassify workers as independent contractors to avoid paying payroll taxes, and other employment-related expenses.

TRC Staffing Services CEO Brian Robinson, right, says that the legal distinction between full-time staff and independent contractors can be very confusing for many employers.

Mr. Robinson says the auditors ultimately found that his 30-year-old family business, TRC Staffing Services Inc., with its 100 permanent employees and up to 20 temporary workers, was in the clear. But he says the audit was “nerve wracking” because tax law doesn’t make it easy to distinguish between full-time staff and independent contractors doing full-time work. He says the legal distinction can be confusing even for an employer with his decades of experience in the labor market.

The appeal of using outside workers is growing as many small businesses struggle to stay lean. Some employers also are turning to contractors to avoid hitting the 50-employee threshold that would require them to pay for employees’ health insurance, starting next year, under the federal health-care law, or pay a penalty.

Read the rest of the article at the Wall Street Journal website.

The IRS continues to delay accepting many 2012 tax forms before the filing deadlines, reports no problems accepting tax payments

On Friday, the AICPA raised concerns with the Internal Revenue Service about the ongoing delay in the agency’s ability to accept many tax forms and the problems that the compressed tax season is causing taxpayers and practitioners. The letter asked the IRS to clarify when it will be able to accept those delayed forms and requested that the IRS consider granting penalty relief for taxpayers affected by this tax season’s delays ( 2/15)

AICPA raises concerns about delayed, compressed tax season   By Alistair M. Nevius, J.D. February 15, 2013

Jeffrey Porter, chair of the AICPA’s Tax Executive Committee, sent a letter to Steven Miller, acting commissioner of the IRS, on Friday raising concerns about the “very compressed and difficult filing season” AICPA members and their clients are facing, due to the ongoing delays in the IRS’s acceptance of certain tax forms.

In early January, the IRS announced a delayed, Jan. 30, start to the 2013 tax filing season, and it did not start accepting business tax returns until Feb. 4. The IRS also announced that, because of the need for extensive form and processing systems changes, many taxpayers would not be able to file returns until March.

The IRS published a list of forms that it would not be able to accept on Jan. 30. Currently, there are still 29 forms that cannot be filed because they must be updated and systems for processing them tested. The IRS has said it will start accepting returns that include these delayed forms in the first week of March, but has not given a specific date. In his letter, Porter expressed concern about the continuing delay in the release of these forms and asked the IRS to clarify when those forms will be available.

Business returns

Porter expressed to the IRS particular concern “about the impact the delays in forms releases will have on the processing of partnership, S corporation, C corporation and other business returns due on March 15.”

He noted that preparers may have only seven days to complete these returns, and he raised the issue of returns that require Form 5471, Information Return of U.S. Persons With Respect to Certain Foreign Corporations, an “extremely complicated” form that “it will be a challenge to complete the filing of” by the March 15 due date.

Individual returns

Porter also raised the issue of problems individual taxpayers are having with the delays—“particularly taxpayers who file one of the delayed forms or needs a Form K-1 from a flow-through entity in order to file their return.”

AICPA recommendations

Porter wrote that the AICPA wants to enter a dialogue with the IRS on three issues:

  1. Sec. 6651 failure to file and failure to pay penalties. The AICPA requests that the IRS “should instruct tax examiners to more readily accept grounds for reasonable cause relief if the taxpayer’s facts demonstrate that the challenges of this tax season caused the return’s delinquency”;
  2. Sec. 6654(e)(3) estimated tax penalty relief. The AICPA asks the IRS to consider granting estimated tax penalty relief based on the unusual circumstances surrounding this tax season and “for reasons of equity and good conscience”;
  3. Clarity in the release of tax forms. The AICPA requests the IRS to provide “more clarity about the timing for the release of the remaining tax forms.”