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Best Entity Selection for Operating in Texas

It’s a great time for many closely held businesses to revisit their entity selection.

The Tax Cuts and Jobs Act (TCJA) has added a new twist to selecting the best type of entity for doing business in Texas. The federal corporate tax rate was lowered from a maximum 35% to a flat 21%; while at the same time a new 20% deduction was allowed for individuals with Qualified Business Income (QBI). It’s a great time for many closely held businesses to revisit their entity selections.

Selecting the best entity for your business has important tax and legal ramifications. Below are some points to discuss with your CPA and attorney. Call us at (940) 539-3238 to learn more.

In general

Sole proprietorships are best suited for single owner entities that do not need liability protection, are not concerned with mitigating self-employment taxes and do not need to raise or accumulate capital. Sole proprietorships have relatively few administrative requirements and are simple and inexpensive to form. Personal assets may be seized to satisfy business obligations or debts.

Partnerships are best suited for multiple owner entities that do not need liability protection, are not concerned with mitigating self-employment taxes and do not need to raise or accumulate capital. Partnerships have relatively few administrative requirements and are simple and inexpensive to form. Partners may not be employees of the partnership. Personal assets may be seized to satisfy business obligations or debts, and partners are joint and severally liable.

Limited partnerships are best suited for multiple owner entities that do not need liability protection for general partners, are not concerned with mitigating self-employment taxes and do not need to raise or accumulate capital. Partners may not be employees of the partnership. Limited partnerships have relatively few administrative requirements. Assets of general partners may be seized to satisfy business obligations or debts, and general partners are joint and severally liable. Limited partners can not be active participants in the day-to-day operations of the business. An LLC may be created to serve as the general partner. Owners may not claim tax losses in excess of their investments.

The LLC is best suited for entities that need liability protection, are not concerned with mitigating self-employment taxes and do not need to raise or accumulate capital. The LLC has relatively few administrative requirements. Income is passed through to the members, unless the LLC elects to be taxed as a c-corporation. All members may participate in the day-to-day operations of the business and, typically, assets of members may not be seized to satisfy business obligations or debts. Ownership interests are typically not freely transferable and, in Texas, are not considered attachable property. Owners may claim tax losses in excess of their investments, such as on certain leveraged real estate investments.

The S corporation is best suited for entities that need liability protection, are concerned with mitigating self-employment taxes and do not need to raise or accumulate capital. Entities taxed as an s corp may be able to reduce self-employment taxes by paying owner-employees both salaries and distributions. Ownership interests are freely transferable and, in Texas, are considered attachable property.

C corporations are best suited for entities that desire to go public, raise capital or accumulate capital for expansion or to service debt. Ownership interests are freely transferable and, in Texas, are considered attachable property.

The information provided above is not meant to be legal or tax advise. You should consult your CPA and attorney to determine the best structure for your entity.

See also: New Tax Law. What’s Hot. What’s Not.

~Mitzi E. Sullivan, CPA

M.E. Sullivan is a cloud based professional services provider specializing in cloud accounting.

Additional information is provided by the Texas Secretary of State and copied below:

  • Sole proprietorship: The most common and the simplest form of business is the sole proprietorship. In a sole proprietorship, a single individual engages in a business activity without necessity of formal organization. If the business is conducted under an assumed name (a name other than the surname of the individual), then an assumed name certificate (commonly referred to as a DBA) should be filed with the office of the county clerk in the county where a business premise is maintained. If no business premise is maintained, then an assumed name certificate should be filed in all counties where business is conducted under the assumed name.
  • General partnership: A general partnership is created when two or more persons associate to carry on a business for profit. A partnership generally operates in accordance with a partnership agreement, but there is no requirement that the agreement be in writing and no state-filing requirement. If the business of the partnership is conducted under an assumed name (a name that does not include the surname of all of the partners), then an assumed name certificate (commonly referred to as a DBA) should be filed with the office of the county clerk in the county where a business premise is maintained. If no business premise is maintained, then an assumed name certificate should be filed in all counties where business is conducted under the assumed name.
  • Corporation: A Texas corporation is created by filing a certificate of formation with the Texas Secretary of State. The Secretary of State provides a form that meets minimum state law requirements. Online filing of a certificate of formation is provided through SOSDirect.A corporation is a legal person with the characteristics of limited liability, centralization of management, perpetual duration, and ease of transferability of ownership interests. The owners of a corporation are called “shareholders.” The persons who manage the business and affairs of a corporation are called “directors.” However, state corporate law does provide for shareholders to enter into shareholders’ agreements to eliminate the directors and provide for shareholder management. Choosing the best management structure for your corporation is a decision you make with the advice of an attorney. The Secretary of State cannot assist you.

    An “S” corporation is not a matter of state corporate law but rather a federal tax election. A for-profit corporation elects to be taxed as an “S” corporation by filing an election with the Internal Revenue Service. Please contact the IRS or competent tax counsel regarding the decision to be taxed as an “S” corporation and the requirements for filing the election. This is not a matter with which the Secretary of State may assist.

  • Limited Liability Company: A Texas limited liability company is created by filing a certificate of formation with the Texas Secretary of State. The Secretary of State provides a form that meets minimum state law requirements. Online filing of a certificate of formation is provided through SOSDirect.The limited liability company (LLC) is not a partnership or a corporation but rather is a distinct type of entity that has the powers of both a corporation and a partnership. Depending on how the LLC is structured, it may be likened to a general partnership with limited liability, or to a limited partnership where all the owners are free to participate in management and all have limited liability, or to an “S” corporation without the ownership and tax restrictions imposed by the Internal Revenue Code. Unlike the partnership, where the key element is the individual, the essence of the limited liability company is the entity, requiring for its creation more formal requirements. 1 William D. Bagley & Phillip P. Whynott, The Limited Liability Company, §2.10, (2d ed. 2d rev. James Publishing, 1995).

    The owners of an LLC are called “members.” A member can be an individual, partnership, corporation, trust, and any other legal or commercial entity. Generally, the liability of the members is limited to their investment and they may enjoy the pass-through tax treatment afforded to partners in a partnership. As a result of federal tax classification rules, an LLC can achieve both structural flexibility and favorable tax treatment. Nevertheless, persons contemplating forming an LLC are well advised to consult competent legal counsel.

    A limited liability company can be managed by managers or by its members. The management structure must be stated in the certificate of formation. Management structure is a determination that is made by the LLC and its members. The Secretary of State cannot give advice about management structure.

  • Limited Partnership: A Texas limited partnership is a partnership formed by two or more persons and having one or more general partners and one or more limited partners. The limited partnership operates in accordance with a partnership agreement, written or oral, of the partners as to the affairs of the limited partnership and the conduct of its business. While the partnership agreement is not filed for public record, the limited partnership must file a certificate of formation with the Texas Secretary of State. The Secretary of State provides a form that meets minimum state law requirements. Online filing of the certificate of formation is provided through SOSDirect.
  • Limited Liability Partnership: In order to limit the liability of its general partners, a general or limited partnership may opt to register as a limited liability partnership. The Secretary of State provides a form for registration as a limited liability partnership. Online filing of the registration is provided through SOSDirect.

Reading Through the CARES Act

See latest updates on my YouTube channel: Mitzi E. Sullivan, CPA

Update: Pages 15-29 – 3/28/20, 12:46 PM

SEC. 1108. MINORITY BUSINESS DEVELOPMENT AGENCY

• Grants are available to minority business centers and minority chambers of commerce to provide education, training, and advising to minority business enterprises and their employees on accessing and applying for resources.

SEC. 1110. EMERGENCY EIDL GRANTS

• EIDL grants are available to small businesses (500 or fewer employees), sole props, independent contractors, coops (500 or fewer employees), ESOPs (500 or fewer employees), tribal small business concerns (500 or fewer employees), private nonprofit organizations, and small agricultural cooperatives.
• Covered period is January 31, 2020 and ending on December 31, 2020.
• No personal guarantee on advances and loans $200K or less.
• No 1-year period in business requirement.
• No unable to obtain credit elsewhere requirement.
• No tax return required for application. Based on credit score.
• Advance of up to $10K may be requested within 3 days of application to pay covered: sick leave, payroll, supply chain interruption costs, rent, mortgage payments and payments on other covered obligations. No repayment of the advance is required.
• Available through 12/31/20.

Deferment of payment, interest and fees on many SBA loans for 6 months.

Pages 1-14 – 3/28/20:

Reading through the new stimulus bill to see what’s included. The CARES Act is over the top. I have taken notes of some of the included information that stood out to me. I’m currently on page 14 of 335 so I will continue to update this post as I read more.

SEC. 1102. PAYCHECK PROTECTION PROGRAM.
• The new PPP loan is available now through 6/30/20 and may be used to pay covered costs for the covered period 2/15/20 to 6/30/20.
• Includes 501(c)(3)s that are exempt under 501(a) (up to 500 employees).
• Includes commissions, cash tips, retirement benefits…
• Includes up to $100K of “net earning from self-employment” – prorated
• Includes small businesses (up to 500 employees) and makes exceptions for others.
• Includes sole props and independent contractors.
• For most, the maximum loan amount will be equal to (average total monthly payments by the applicant for payroll costs incurred during the 1-year period before the date on which the loan is made x 2.5) + any outstanding (b)(2) Express loans approved or pending during the period 1/31 to the date of the new PPP loan, up to $10M, exclusions apply.
• May be used to pay payroll, benefits, commissions, interest, rent and utilities.
• No personal liability for organizational loans.
• No loan administration fees.
• No personal guarantee for organizational loans and no collateral.
• Terms are 10 years and 4%
• EIDL loans that were already approved or pending during the period from 2/15/20 through 3/27/20 are deferred for 6 to 12 months (no payments or interest due).
• Lenders will be reimbursed.
• Loan application preparer fees will be limited to…(still digging…)
• EIDL loan recipients from 1/31 to the date of the PPP loan are eligible if the EIDL loan is not for purposes covered by the PPP loan.
• No prepayment penalty.
• Express Loan Programs are no longer available.
• Covered costs for an 8-week period will be forgiven, subject to limitations.

Disclaimer: The information provided above is not meant to be legal or tax advise. You should consult your CPA and attorney to determine the best course of action for your situation.

~Mitzi E. Sullivan, CPA

Mitzi E. Sullivan, CPA is a cloud based professional services provider specializing in cloud accounting.

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The Largest Stimulus Bill in U.S. History

Congress and the Trump Administration agreed to a deal for what will be the largest stimulus package in American history. Overnight, senators and the Trump administration officials reached a deal for approximately a $2 trillion stimulus to send direct payments and benefits to individuals and businesses devastated by the coronavirus pandemic. There will be a final vote today at noon and it is believed that the bill will unanimously pass and go into effect in the next few days.

The full details of the stimulus have not yet been released. The deal is expected to set aside $250 billion for direct payments to individuals and families, $350 billion in small business loans (https://disasterloan.sba.gov/ela/), $250 billion in unemployment insurance benefits and $500 billion in loans for distressed companies. As the plan was being negotiated, individuals who earn $75,000 in adjusted gross income or less would get direct payments of $1,200 each, with married couples earning up to $150,000 receiving $2,400 and an additional $500 per child. The payments would scale down by income and entirely phase out for individuals who earn more than $99,000 and couples who earn more than $198,000.

Although we are still waiting on the full and final details of the stimulus package, we are confident that people and businesses in need will have support from the government very soon. Members of Congress have also acknowledged that other legislative measures may be needed in the coming months if the pandemic continues to drag out.

Many of the loans and advances require current financial data and tax returns filed through 2018. Even if you still owe from previous years, make sure your tax returns have been filed through 2018. If you need any help getting caught up on your taxes and/or with loan applications, please reach out and we are happy to help. You can also follow us on social media to stay up to date on these events.

~Mitzi E. Sullivan, CPA

Mitzi E. Sullivan, CPA is a cloud based professional services provider specializing in cloud accounting.

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Hunkered Down, day 6

Financial triage.

Texas got a liquidity lifeline last night. Abbott announced that all Texas counties have been included in the Economic Injury Disaster Declaration, which grants access to the Economic Injury Disaster Loan (EIDL) program. The program provides long-term, low-interest loans to small businesses (3.75%) and nonprofits (2.75%) with repayment terms up to 30 years. That’s great news for our local mom-and-pops and employers who are sinking fast.

The turnaround time for the Express loan is reported to be 36 hours. I’m a little skeptical, but I’ll let you know. We are prioritizing these applications and working as quickly as we can to help all of our clients. Bear with us, the 4506-T is already down this morning, and I started at 4am. I’ll keep trying throughout the day and let you know if I get one to go through. Click here to complete the online application at the SBA website.

Proposed: The Main Street Emergency Grant Program would offer grants to small, and possibly mid-sized businesses, and nonprofits to cover payroll and fixed costs, such as rent. The grants would be made avialable “quickly” to provide liquidity and avoid layoffs. This proposal has not been finalized.

Recommendation: Defer the Texas Franchise Tax payment and filing deadline until August 15th, 2020. The delay would defer preparation fees and tax payments for taxpayers, while allowing more time for tax return preparers to help clients navigate the current crisis. Please contact Glenn Hegar at the Texas Comptroller of Public Accounts and encourage him to support this recommendation.

See also:

~Mitzi E. Sullivan, CPA

Mitzi E. Sullivan, CPA is a cloud based professional services provider specializing in cloud accounting.

SBA Economic Injury Disaster Loan Application Process

The U.S. Small Business Administration (SBA) has approved certain cities and states whose businesses have been negatively impacted by COVID-19 to be approved for the Economic Injury Disaster Loan.

On March 17th, Governor Greg Abbot requested emergency designation from the SBA Economic Injury Disaster Declaration to give access to the Economic Injury Disaster Loan program for the entire state of Texas. Abbot is estimating approval by next week. Small businesses can apply at: https://disasterloan.sba.gov/ela/.

The SBA has announced that the website is experiencing high volumes of traffic and slows down from 7:00 am to 7:00 pm. The best time to apply on the website is after peak hours from 7:00 pm to 7:00 am. It has been reported that some users are experiencing issues with Google Chrome. The SBA recommends using an alternate web browser like Microsoft Edge or Internet Explorer.

Hunkered Down, day 4

A new season.

Trying to stay focused. I can hear the news continually in the background and none of it’s good. Working from home is difficult when you want to sit with your family and reach out to others that you can’t be with.

Video conferencing and online services are working well. Praise God! Century Link is actually working. This may be a new normal for many of our clients who are trying these new technologies for the first time. It’s convenient and, hey, you only have to dress from the waste up.

My clients are all scrambling, adapting to the constantly changing markets and conditions. With forced closings, many are laying off, not knowing when their doors will reopen. We desperately need congress to finalize the stimulus package so we can stop trying to hit a moving target. Here’s what I know so far.

Proposed: Small Business Loans and Economic Impact Payments to Individuals

As of this morning, congress is still working out the details and has not passed the bill. The treasury department’s proposal would guarantee small business interruption loans up to 100% of 6 weeks of payroll for a wide range of eligible small businesses.

Two equal economic impact payments would be issued on April 6th and May 18th to eligible individuals. These payments are predicted to be $1,000 to $2,000 each.

In Effect: April 15th Tax Relief

Federal individual and corporate tax payments due on April 15th, 2020 are automatically deferred for up to 90 days without incurring penalty and interest. The deferral includes both 2019, and 1st quarter 2020, income and self-employment taxes. The deferral is expected to add an estimated $300 billion in liquidity to the economy in the near term. The deferral amounts are limited, so call us or check the IRS website for details: Payment Deadline Extended to July 15, 2020 and Notice 2020-17 (PDF), Relief for Taxpayers Affected by Ongoing Coronavirus Disease 2019 Pandemic.

See also: Hunkered Down, day 2

In Effect: Economic Injury Disaster Loan Program

Small business owners in the following designated states are currently eligible to apply for a low-interest loan due to Coronavirus (COVID-19): California, Connecticut, Delaware, the District of Columbia, Florida, Georgia, Indiana, Maine, Massachusetts, Montana, Nevada, New Hampshire, New Jersey, New Mexico, North Carolina, Rhode Island, Utah, and Washington. Click here to apply. Find more information on the SBA’s Economic Injury Disaster Loans at: SBA.gov/Disaster.

~Mitzi E. Sullivan, CPA

Mitzi E. Sullivan, CPA is a cloud based professional services provider specializing in cloud accounting.

Free Tax Resources Provided by the IRS

  • Free File – prepare and file your federal income tax return for free using tax preparation and filing software.
  • Where’s My Refund? – is an online tool that will track your tax refund. You will need your Social security number or ITIN, your filing status and your exact refund amount to use the tool.
  • Online Payment Agreements – you can apply for a payment plan online to pay off your balance over time.
  • IRS2Go mobile app – Check your refund status, make a payment, find free tax preparation assistance, sign up for helpful tax tips, and more!
  • Online Account – use this tool to view: Your payoff amount, updated for the current calendar day, the balance for each tax year for which you owe, up to 24 months of your payment history and key information from your current tax year return as originally filed.

Hunkered Down, day 2

Wow! What a day. Monday, March 16, 2020 was intense. Tax deadline, concerned clients, family and friends, relocating my staff and all of their equipment to work from home, setting up remote phone and conferencing systems and back up and running by noon. Thanks to my awesome staff for gitin’ er done and to my amazing clients for your support. Not gonna lie, I binged on my quarantine snacks last night and I’m a little bloated this morning.

Looks like today will be chilly and rainy. No worries. We’re all hunkered down anyway. Here’s my plan for the next two weeks:

Count my blessings! I don’t have a clue whether we are overreacting or underreacting. Time will tell. I’m so thankful to live in a community where I trust the motives of my leaders. Thank you, guys, for your honesty and dedication to our community. I am praying wisdom for you all and trusting God to work through you.

Consider my neighbor. As of last night, there were no confirmed cases in Wise County. Let’s do what we can to keep it that way. I have family and friends who are immunocompromised, or work in health care or first response. If you don’t, pretend you do.

Use my gifts. I am diligently working with clients to help them navigate this rapidly transforming economy. The potential impact on our businesses and livelihood is daunting. But necessity is the mother of invention! I see a plethora of excellent ideas and new opportunities every day. My favorite from yesterday is A Touch of Rust Online Market which will replace the market scheduled for March.

Pray. Worrying is terrible for your immune system. There is nothing more destressing than chatting it up with the Creator of the universe. This ain’t His first rodeo. Share your concerns with Him, leave them with Him, then get up and git er done!

The Rapid Response to COVID-19 in the United States

Over the weekend, President Trump and the House of Representatives passed a relief bill for the coronavirus. The new bill includes:

FREE COVID-19 TESTING

The first drive through testing center in DFW will begin today at Parkland Health & Hospital System in Dallas. More testing centers will be added in DFW in the coming days.

PROTECTION FOR FIRST RESPONDERS

The Occupational Safety and Health Administration is required to issue rules and regulations to increase protections against the coronavirus. First responders will be given priority to testing and safety protections.

PAID SICK LEAVE

The benefit must be paid by employers with less than 500 workers. Any worker who contracts the coronavirus will receive 100% of their wages during recovery and isolation period. Employers will be reimbursed by the federal government via tax credit.

FOOD AID

The bill provides $1.3 billion in food aid for low-income pregnant women, senior citizens and food banks. States will be able to provide food stamps to help families and children who would miss out on free meals from schools.

UNEMPLOYMENT BENEFITS

Legislation has provided $1 billion to help those who have been laid off due to the coronavirus outbreak.

What can employers do to help limit the number of outbreaks?

Employers should implement remote working and encourage any employers who have symptoms to stay home. For employees who cannot work remotely, employers must encourage social distancing while at the workplace and provide cleaning supplies for all workstations. Employers should encourage and educate employees on the importance of sanitation and social distancing to help keep the outbreak as minimal as possible.

COVID-19: Economic Impact and Government Relief

With COVID-19 impacting the world economy, President Trump has made plans to help strengthen businesses. Small business loans will be available to eligible organizations negatively impacted by economic slowdown. The Small Business Administration (SBA) has been instructed to provide low-interest loans to help strengthen organizations negatively impacted by COVID-19. To receive an Economic Injury Disaster Loan (EIDL) from the SBA, the organization must be in a county who has been approved for an Economic Loss Declaration. Small businesses who receive the EIDL are set to accrue interest at 3.75% and nonprofits at 2.75% with repayment terms extending up to 30 years.

In addition to the Economic Injury Disaster Loan program, “[President Trump] will be instructing the Treasury Department to defer tax payments without interest or penalties for certain individuals and businesses negatively impacted.” This tax holiday will give businesses a 90 day grace period to pay 2020 Q1 ES payments.

Avoiding and Navigating IRS Audits

Whether you are trying to avoid an IRS audit, or have received a notice from the IRS, this guide contains helpful information: irsaudits2019

See also: New Tax Law. What’s Hot. What’s Not.

~Mitzi E. Sullivan, CPA

Mitzi E. Sullivan, CPA is a cloud based professional services provider specializing in cloud accounting.