Small Business and Work Opportunity Tax Act of 2007

By MICHAEL SCHLESINGER, ESQ.
Partner
Schlesinger & Sussman
Copyright 2007

THIS ARTICLE DOES NOT CONSTITUTE TAX, LEGAL, ACCOUNTING OR OTHER ADVISE FROM MICHAEL SCHLESINGER OR SCHLESINGER & SUSSMAN. IF TAX, LEGAL, ACCOUNTING, OTHER ADVISE OR EXPERT ASSISTANCE IS REQUIRED, THE SERVICES OF A COMPETENT PERSON SHOULD BE SOUGHT.

The 2007 Small Business Tax Act (“SBTA”) targets a number of situations, namely, small businesses by providing tax incentives such as extending and enhancing the Code Sec. 179 expensing, extending the Work Opportunity Tax Credit, etc. To make the new bill revenue neutral, revenue raising provisions were inserted, namely expansion of Code Sec. 1(g)’s Kiddie Tax.

Kiddie tax
Section 1(g)(2) was amended effective for taxable years beginning after 5/25/07 to provide generally that the kiddie tax will apply to children who are 18 years old or who are full-time students over the age of 18 but younger than 24 with the provision to only apply to children whose earned income does not exceed one-half of the amount of their support. Thus, this change will affect taxpayers beginning in 2008

Tax Pointer

Prior law prescribed that unearned income in excess of $1700 for children under the age of 18 is taxed at their parents’ marginal tax rates, if the rates are higher than the child’s tax rates. This law now applies as well to children 18-24 if they receive half their support from their parents. Reg. §1.152-1(a)(2)(I) defines support:

“The term "support" includes food, shelter, clothing, medical and dental care, education, and the like. Generally, the amount of an item of support will be the amount of expense incurred by the one furnishing such item. If the item of support furnished an individual is in the form of property or lodging, it will be necessary to measure the amount of such item of support in terms of its fair market value.”

Cases under case law defining support incorporate a person’s lifestyle, not necessarily “necessities” so that the definition includes parochial high school, college, summer camp, bicycle repairs, vacations, etc.

Tax planning

1. Because the effective date is not retroactive, before 12/31/07 children 18 and those between 18 and 24 who are receiving more than one-half support, should sell appreciated property in their name to take advantage of their lower rates

2. Parents will no longer be able to flip to kids in college gifts of appreciated property; thus students will probably have to take out student loans to be repaid when the kid reaches 24 cashing in the appreciated property at that time. However, it is impossible to predict what the capital gain rate will be at that time. Note, the tax rate for those in the 15% or lower tax brackets fall to zero in 2008 and remain through 2010, but due to the change in the Kiddie tax, this will have no effect on the children covered by the expansion of the law.

3. The Kiddie tax expansion tracks the definition of the “qualifying child” in the Working Families Tax Relief Act of 2004. However, unlike the uniform definition, a child who is permanently and totally disabled is covered by the kiddie tax.

4. Scholarships received by a student at a Code Sec. 170(b)(1)(A)(ii) educational institution are not counted as support.

5. Parents who have a business can hire their children to work for them and pay them reasonable compensation with this compensation being taxed at the child’s tax rates and if the child earns enough to be more than one-half of his or her support for the year, then the child will not be subject to kiddie tax on unearned income.

6. Parents of children who are subject to the new kiddie tax rules should consider means to avoid tax such as making the children stockholders in a family business which produces little or no cash dividends, purchase tax exempt bonds, Series EE savings bond deferring the interest reporting.

§ 179

Congress has tweaked again §179 to increase the base dollar limit from its current amount of $112,000 (reflecting indexing for inflation) to $125,000 for taxable years beginning in 2007 through 2010 with indexing for inflation to continue to apply. Additionally, the investment limitation has been raised from $450,000 to $500,000 for tax years beginning in 2007 through 2010 with indexing for inflation to continue to apply. Off-the- shelf computer software continues to be eligible as well as the other provisions of prior law, such as carryforward of unused expense to future years, revocation of the election by filing amended returns [no consent needed from IRS], etc. | The balance of this article covers, in full detail, the following topics that are outlined below. The complete article is available for download at National Tax Institute’s web site.

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Download the rest of this report at www.nti-inc.com/newNTI/resources/m-schlesinger-article1.htm. Michael Schlesinger is a partner with the firm of Schlesinger & Sussman, New York, NY. He is a former Adjunct Professor of Law, Pace University Law School and author of S Corporations: Tax Practice and Analysis & numerous other books and publications. He regularly contributes to National Tax Institute (www.nti-inc.com) - CPE Conferences - He can be reached at (973) 773-8877.

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