You hear about it every election year, some woman is running for office and she gets outed for not paying her “nanny tax.” (I’m sure that there are men guilty of this crime as well, but it seems that women candidates are the ones who get caught.) If you have household employees, such as a nanny, private nurse, cleaning person, health aide or private gardener, you may be subject to paying their payroll taxes.
How do I know I have an employee? Good question – that’s how people get in trouble. Here’s an example: I hire Ernie the lawn guy. He uses his own equipment. He usually comes on Thursdays, but last week he thought my grass wasn’t long enough so he didn’t cut it. Ernie basically has control over what he does. Ernie has his own lawn care company – he’s self employed. On the other hand, I hired Dawn to help take care of my mom. Dawn only worked a few hours a week, but Dawn was supposed to come at a certain time, leave at a certain time, we purchased any supplies she needed, and she basically did what she was instructed to do. Dawn was really a household employee.
If you hire someone to care for your children in your home – that’s pretty much a household employee because you’re going to have some very specific rules about how your children are cared for. On the other hand, if you take your children to someone else’s home for child care, even though you may have very specific rules about how your child is cared for, it’s still not a household employee because your child is being cared for outside of the home. Is this getting any easier? I know it’s kind of fuzzy but that’s pretty much how it goes.
If you have a household employee, you need to have them do employee paperwork: They need to fill out an I-9 form. Here’s the link to that: http://www.uscis.gov/files/form/i-9.pdf. The page that needs to be filled out is on page 4. For most people, you’re going to want to check their driver’s license and social security card to make sure they are allowed to work in the US. Page 5 gives you lists of other acceptable documents should you need them.
The other document that you’re going to want your employee to complete is a W4 if you’ll be withholding income tax. http://www.irs.gov/pub/irs-pdf/fw4.pdf Most household employers do not withhold state or federal income tax but some do. You will be withholding social security and medicare taxes from every paycheck though.
So now that you’ve determined that you’ve got a household employee and you’re withholding social security and medicare taxes, how do you pay them? Household employee withholding is a little easier than if you own a business and have to pay withholding taxes. You’re actually going to pay the taxes with your own personal 1040 return on a form called Schedule H. http://www.irs.gov/pub/irs-pdf/f1040sh.pdf
Before you panic about having to do withholding and stuff, make sure that you’ve paid enough to be required to do withholding. If you pay any one employee wages of $1700 or more, then do the Schedule H. If you withheld federal income tax, that will be included on the Schedule H as well. Also, if you pay total cash wages of $1000 or more in any calendar quarter, then you’ll also have to do a schedule H. For example: you hired two workers around Christmas and paid them each $600 – then you’ve got to do the Schedule H, even though you haven’t paid either of them over the $1700 limit. There are some exceptions for people under 18, hiring your kids, or hiring your parents. If you think you have an exception to paying the nanny tax, or want more information, you can read more about it in IRS publication 926. http://www.irs.gov/pub/irs-pdf/p926.pdf
You will need to supply your household employee with a W2, and the appropriate copies will need to be sent to the Social Security Administration. You can get free forms from the IRS. You have a deadline of January 31st for getting the W2 to your employee and February 29th for the Social Security Administration. You must use the real form – it’s red. You can’t download it off the internet. Here are W2 filing instructions from the Social Security Administration: http://www.socialsecurity.gov/employer/index.htm
Now here’s the big commercial plug—doing all these forms can be a real pain in the behind for a normal person. For a tax geek like me, it’s kind of fun. (I guess that means I’m not normal?) But at Roberg Tax Solutions we can get all of your household employee tax paperwork taken care of and done right, so you don’t have to worry about it.
I know, this is supposed to be the tax column: taxes, taxes, taxes. Sorry, not today. I’m taking the day off. I spent yesterday watching the Macy’s Thanksgiving Day Parade on television, eating far too much turkey and stuffing, and visiting with the relatives. On Friday I’ll probably spend too much money at the mall. Mind you, I hate shopping on Black Friday, but certainly one of said relatives will talk me into going. That is, of course, unless one or more of the younger said relatives talks me into the Muppet Movie—they talked me into The Smurfs last summer and I guess I have sufficiently recovered from that by now.
Don’t worry about me going all happy and smiley on you. I’ll be back to my old “death, divorce, bankruptcy, foreclosures, and IRS problems” next week. Geez, I gotta lighten up.
Anyway, I hope you had a great holiday too.
It’s happening all over the place. Homes are being foreclosed on and banks are forgiving loans. Having your loan forgiven can be a lifesaver, but being taxed on that loan forgiveness can be devastating. There are remedies to help ease the tax burden, but make sure you know the facts so that it doesn’t come back to bite you.
If your debt has been cancelled by the bank, you should receive a document called Form 1099C, Cancellation of Debt. This form also goes to the IRS. It must show the amount of debt forgiven and the fair market value of the property that was foreclosed. Once you get a 1099C, make sure that you check it over carefully. If anything is wrong on that form, you need to go back to the bank to have them change it. The two important numbers you’re looking at are the debt forgiven amount (that’s box 2), and the fair market value of the property at the time of foreclosure (box 7). These figures will be extremely important to you, especially if you have credit card debt or college loan money tied up in your mortgage.
The Mortgage Forgiveness Act of 2007 allows you to exclude up to $2 million of debt forgiven on your principal residence. The limit is only $1 million for a married person filing a separate return. You don’t have to be foreclosed on to exclude debt—you may also exclude debt reduced through a mortgage restructuring. This is really important for people doing a workout with their bank.
To qualify for mortgage forgiveness, the debt had to be used to buy, build, or substantially improve your main home and the mortgage had to be secured by the home. For example: let’s say you bought your home for $250,000 back in 2003. You put $50,000 down and financed the other $200,000. The value of your home was going up, and in 2006 when the balance of your loan was $180,000 you refinanced and took out another $50,000 to pay off credit cards. Times have changed and now you have outstanding debt on your home of $230,000 but the value has dropped to $200,000. The bank forecloses and forgives your debt of $230,000. $180,000 can be written off as mortgage forgiveness because that’s the value of what you used to buy the home, but the remainder will still be taxable to you unless you qualify under some different category to abate the taxes. See where the problem is here? If the home is worth $200,000 when your debt is written off, the whole $180,000 that would have been forgiven is already covered by the value of the home, so really the only debt being written off is the other $30,000 remaining after the fair market value of the home is written off. Because that’s not part of the purchasing debt, that $30,000 is fully taxable, unless you can use of the other exclusions.
If you qualify to exclude your mortgage forgiveness from tax, you’ll need to complete Form 982, Reduction of Tax Attributes Due to Discharge of Indebtedness (what a mouthful) and attach it to your federal tax return. Here’s a link to the form on the IRS website: http://www.irs.gov/pub/irs-pdf/f982.pdf. If 100% of your debt forgiven was for a mortgage used to buy, build or improve, it’s not that hard to do the forms. If you’ve got any other debt included with your mortgage forgiveness, don’t go it alone.
Debt that was forgiven on credit cards, second homes, rental property, car loans, or business property does not qualify for the principal residence exclusion. The debt might still qualify for a tax exclusion based on another category, like insolvency. There are instructions about claiming the insolvency exclusion on the IRS website, but for that you might want to get professional help with that. You can’t just go, “Oh, I couldn’t pay so I was insolvent.” The paperwork is a little more complicated than that and it tends to get looked at pretty carefully by the IRS. To be honest, I’ve had to help a few people who tried filing 982 forms on their own and wound up getting IRS letters. Personally, I think it’s cheaper to get help from the start and do it right than have to pay someone like me later to straighten out a mess with the IRS.
They’ve flip-flopped on the issue more often than a presidential candidate in a primary debate. If you’re a little confused about what you can or can’t deduct, you’re not alone. Hopefully this will help.
First, in order to claim this credit, any improvements must be made to an existing home and it must be your main residence. This means that landlords and new home builders are out of luck on this one.
The credit is smaller than before. If you did improvements in 2011, the credit is 10% of the cost of the improvements and it caps at $500. Some credits, like windows, are capped at an even lower amount.
There’s also a lifetime limit on the credit so if you received an energy tax credit anytime between 2006 through 2010 then your 2011 energy tax credit will be reduced by that much.
Excuse me for a moment while I rant and rave. The IRS says on its website that you should keep your tax records for 3 years. But for this case, the IRS is expecting you to go back through 5 years worth of information to see if you claimed a credit back in 2006? This is crazy. Nobody’s tax software has carried forward that information because it was never a carry forward issue until now. This tax credit is kind of a “Thanks, but no thanks,” kind of deal. Gee it’s nice that they extended it and all, but it’s really going to be a pain in the *#$. I’m expecting a lot of IRS “gotchas” with this credit and I think “gotchas” are morally wrong.
Okay, back to business now. The bottom line is, if you’ve claimed $500 worth of energy tax credits at any time over the past 5 years, don’t try to claim any more. Make sure you check (because the IRS most certainly will). The form you’re dealing with is Form 5695. I don’t have a link to the 2011 form yet.
Also, if you’ve zeroed out your taxable income, this credit is “non-refundable” which means it’s only a credit against your tax liability, if you owe no tax, this credit won’t help you.
Another thing is the whole “Energy Star” issue. You’ll want to make sure that the improvements that you make on your home qualify under the “Energy Star” program. Here’s a link to their website: http://www.energystar.gov/index.cfm?c=tax_credits.tx_index. But it’s important to remember that just because you buy something that has an Energy Start label doesn’t mean that you’ll qualify for a tax credit. I had a couple of clients last year who brought in receipts and Energy Star labels but it was for things that didn’t qualify for the tax credit.
If you need to install insulation or storm windows, go ahead and do the work. Do what’s right for your home and family. If you manage to qualify for a tax credit for it, great, but don’t count on receiving that tax credit as you calculate your expense of the project. There are a lot of land mines you have to step over to get to it.
Good question! Starting in 2012, you can put up to $17,000 away for retirement in a 401(k) plan. This figure also holds for people who have 403(b) plans and any of the 457 plans as well. If you happen to be over 50, you’re allowed what’s called a catch-up contribution so you can add an additional $5,500, making your total 401(k) contribution $22,500 for 2012.
Remember, money that goes into a 401(k) is tax-deferred so although you’re not paying tax on the money now, you will pay tax on it when you do withdraw it for retirement. If you take the money out of the plan before you reach the age of 59 ½, there’s a 10% additional penalty on top of the regular tax that you’ll pay. As much as I think 401(k) plans are a great deal, if you think that you’re going to need the money before you retire, you might want to re-think your contribution.
A good rule of thumb is that a person should be contributing 10% of his or her income into a retirement program. If you can afford 15%, that’s better, but 10% for sure.
Some companies have what’s called a Roth 401(k)—it basically works like a Roth IRA: you pay your income tax on your retirement plan contributions now, but when you take the money out later it’s tax free. Roth 401(k) plans have the same limits as regular 401(k) plans. If you have access to one of these plans you should seriously consider using it. For anyone who is in a 15% or lower tax bracket, choosing the Roth should be a no-brainer. If you’re in the 25% tax bracket and under 40, I’d still go with the Roth. After that, I’d start doing some serious considerations of what my future plans were, how early I’d want to retire, and other factors.
If your income is below $58,000, you can make fully deductible IRA contributions in addition to your 401(k) contributions (For married couples it’s $92,000.) This gives you some wiggle room. If you’re not comfortable committing to your 401(k) contribution rate, you can make up the rest with an IRA if you’ve got the funds at the end of the year.
If you haven’t started saving for retirement yet, this is the time to start.
This is one of those things nobody wants to deal with. I don’t remember ever learning about it in tax school (I take update and continuing education classes every year). I don’t remember hearing a thing about it when I took the “Military Taxpayer” class which specifically targeted all sorts of military tax issues. I actually learned about it doing research on something else and landed on the wrong page of a document. It seemed like this information should be shared. If you need to be reading this, I am sorry about your loss.
Tax liability can be forgiven if a member of the US Armed Forces dies while in active service in a combat zone. This also includes death from wounds, disease, or other injury received in a combat zone or incurred in a terrorist or military action.
In addition, any unpaid tax liability at the date of death may be forgiven. When a liability is forgiven, it means that the debt doesn’t have to be paid.
If you’re filing a tax return (or amended return) you will have to identify that you will be claiming tax forgiveness by writing across the top of the tax return:
“Iraqi Freedom-KIA” or “Enduring Freedom-KIA”
If the soldier was killed in a terrorist action, write “KITA”. You will use the same phrase that you wrote across the top of page 1 on the line of your tax return for the total tax. On a 1040 that’s line 61.
You will need to attach the following documents to your return:
- Form 1310, Statement of Person Claiming Refund Due a Deceased Taxpayer, here’s a link for that form: http://www.irs.gov/pub/irs-pdf/f1310.pdf
- A certification from the Department of Defense or Department of State (form DD 1300 for military and department of Defense employees)
- You will also need to include a sheet that shows how you computed the tax liability to be forgiven. If you have a joint return, only the soldier’s debt is forgiven, not the spouse’s.
Military tax forgiveness returns need to be mailed to a special address. This is not something that can be e-filed.
Internal Revenue Service
333 W. Pershing, Stop 6503, P5
Kansas City, MO 64108
You can get more detailed information on this issue by reading IRS Publication 3: Armed Forces’ Tax Guide. Here’s a link to the book: http://www.irs.gov/pub/irs-pdf/p3.pdf The information you need starts on page 20.
Whether you’re a parent or a student, if you’re going to college next year (parents-you’re staying home, it just feels like you’re going to college) you need to know about the FAFSA. FAFSA is the Free Application for Federal Student Aid. A very important word here is FREE. You see, there are a lot of websites that will say they’ll do the FAFSA for you, but you have to pay them. The real FAFSA application is free.
The first thing you want to do is make sure that you’re using the correct website. Here’s the address: http://www.fafsa.ed.gov/index.htm. Notice that it doesn’t have a .com or .org in the address. Make sure you go to the right place.
When you complete the FAFSA application, you’re going to want to have all of your information ready. It’s a pain in the behind to get started and then stop and start a million times. Do yourself a favor and print out a copy of the FAFSA application before you start. Here’s a link to that too: http://www.fafsa.ed.gov/fotw1112/pdf/PdfFafsa11-12.pdf
Did you look at that application? That’s for last year. If you’re looking to do the FAFSA for starting school in September of 2012, you won’t be able to complete that form until after January 1. You’re going to need your tax information for 2011 also, so you should really do your tax returns before you file your FAFSA. You can submit them with estimates based upon last year, but you’re really much better off doing your taxes first if it’s at all possible.
Look at the state deadlines listed to the right of the application. Don’t ignore those. For example: I’m in Missouri, it says April 1 is the date by which the application should be received and has a little # meaning that priority is given to applications received by that date. But make sure you check the deadline for the school you’re applying to as well. Missouri as a state has a deadline of April 1, but if you’re applying to Washington University here in St. Louis, they’ve got a FAFSA deadline of January 30th. Make sure you know those deadlines.
Part of the application process that confuses people is the sections about the student and the parents. FAFSA asks questions with the assumption that the student is filling out the form. The whole first section is for the student. This really messes up parents who are completing the form because it asks questions like, Are you married? Do your children receive more than half of their support from you? As a mom myself, I’m answering, yes, I am married and of course I support my children. Oops! Those are all in the section for the student to fill out. My daughter is not married and she has no children to support—big difference. Don’t make my mistakes! Remember, not all people applying to college are kids in still high school.
Parents will get to answer questions starting on page 6. But it’s all asked like the student is filling out the form—what is your parent’s address? And things like that. Outside of the address part, your kids aren’t going to know most of those answers, especially the financial information. They’ll need your help with that.
One question that I have been asked a few too many times is, “Should I just lie about my income?” No, you shouldn’t. The colleges have a verification process for granting financial aid, in most cases you’ll be asked to provide an actual copy of your income tax return. By lying on the FAFSA, not only do you risk losing your potential financial aid—you could also risk losing admission to the school as well. It’s just not worth it.
When you’ve finished the FAFSA application and submitted it, you’ll get your SAR report which basically tells you how much they think you are able to pay towards your college tuition this year. Let me give you a fair warning: whatever you think you are able to pay for tuition, your SAR score will be about twice that amount. Be prepared for that shock, but don’t let it deter you from applying for college. Remember that even though the FAFSA report might say you can afford more than you think you can—the different schools have different programs so you have a good chance of finding a school that has a more generous financial aid program.
One final thing, you might think that your income is too high for you to receive financial aid and so you shouldn’t even apply. The year my son started college, we didn’t really qualify for financial aid, but had submitted the FAFSA application anyway. Later, my husband lost his job and we were afraid that we wouldn’t be able to pay the tuition. Because we had completed the FAFSA, our son’s school adjusted his scholarship based upon my husband’s new situation. They would not have done that if we didn’t have the FAFSA filed. Even if you think you don’t qualify, it could very well be worth your while to do the application.
Sometimes when I’m working with a divorced couple, it seems that the most beneficial way to prepare the tax return is to split the exemption for their child. When I say that, they always tell me, “But I heard that was against the law!” No—that’s not exactly true. But let me tell you, there is a right way and a wrong way to do it. If you follow the rules and do it correctly, it’s not only legal, it’s the right thing to do. Warning: if you don’t follow the rules, you could be breaking the law. I give a lot of advice to do-it-yourselfers, but if you’re planning to split an exemption, I recommend you go to a professional for it. (And if she tells you it can’t be done—hire somebody who knows what she’s talking about.)
With most divorced couples (I’m including here couples who were never married but have split apart and have lived apart for at least 6 months of the past tax year), one parent (usually the mother) has custody and the other parent (usually the father) has visitation rights. A lot of couples say that they have “joint” custody – for example, the kids stay with the dad every Wednesday night and every other weekend and with the mom the rest of the time. If you count the days, under IRS rules, the mother wins on the custody status. According to the IRS, wherever the child spends the most nights is where the child lives—if you’ve got one of those every other weekend and every Wednesday night agreements, the IRS doesn’t count that as being equal.
In my example, I’m saying the child lives with the mother. In IRS lingo, the mother in this example is the “custodial” parent and the father is the “non-custodial” parent.
In this case, the mom has all the power—she’s the custodial parent. The mom can claim all the benefits of having a child on the tax return. Those benefits include:
- Head of Household filing status-a lower tax rate
- Childcare tax credit-credit for money you spend on daycare
- Childcare exclusion-so you don’t get taxed if your company pays for daycare
- Earned Income Credit-this can be worth up to $3,094 for one child
- Exemption for the child-a deduction of $3,600 off your income
- Child Tax Credit-worth up to $1,000
When tax professionals tell you that you can’t split exemptions, what they’re reading is the section of Pub. 17 (that’s like our Bible for tax stuff) that says these things always go to the same person. What they’re not reading is page 31—the part that tells you about the special rules for divorced or separated parents. Under the special rules section, it says that the mom (our custodial parent) can release the exemption for the child to the father (the non-custodial parent). This lets him claim the exemption and the child tax credit on his return, while the mom keeps the head of household status, the dependent care credit, and the EIC on her return.
Why would anyone want to do this? Lots of reasons! Number one, of course, is to maximize the amount of money you get back from the government. A lot of times, after a divorce, the mom doesn’t have a very high taxable income. Remember, child support isn’t taxable. The dad has lost a lot of his deductions so his tax bill could be pretty high. He’d probably never qualify for an earned income credit anyway, but the $1000 child tax credit would really help him out. If the mom’s taxable income is really low, she wouldn’t even qualify for the $1000 child tax credit. In some cases she could give it away without it hurting her at all. Or maybe the father is behind on child support, she could negotiate: if he catches up on the child support by December 31st, she’ll sign the form to allow the father to claim the child’s exemption. Remember, when claiming the exemption for a child, the custodial parent has all the power. If the dad claims the child without permission, the mom can just file her own return fully claiming the child and sending the dad’s return to the IRS audit division. You don’t want that to happen.
Splitting an exemption isn’t the best choice for everybody. You have to look at both returns and see if it’s going to work. It also helps to be on good terms with the ex—this certainly doesn’t work well with people who are fighting.
There are a lot of other rules that I haven’t even touched. (That Pub. 17 book is 295 pages long!) But if you are divorced or separated, you need to know that splitting an exemption might be an option for you to use on your income tax return.
Note: We try to answer all the questions that come to us but please be patient. It’s our busy season right now. We may not get to your post until the weekend. When you make a post and use the capcha code, it won’t immediately show up. You see, for every normal person like you that posts, there’s about three advertisements for things your mother wouldn’t approve of. (We try to keep this a G rated website.) We have to edit those out. If you need an answer right away, here are some links that might help:
How to find free tax preparers: http://www.irs.gov/Individuals/Free-Tax-Return-Preparation-for-You-by-Volunteers
How to find your local IRS office: http://www.irs.gov/uac/Contact-Your-Local-IRS-Office-1
If you want to hire us, please call (314) 275-9160 or email us. We do prepare returns for people all over the country (and a few foreign countries as well.) We are sorry but we cannot prepare an EIC return for someone outside of the St. Louis area because of the due diligence requirements.
The biggest issue you’re going to face as a small business owner this year is whether or not the people you hire to work for you are employees or contract labor. This is such a hot topic with the IRS right now that they’re currently running a Voluntary Compliance Program—giving businesses a chance to “change their minds” about how their workers are classified. It’s called the Voluntary Classification Settlement Program (VCSP).
Basically, with the VCSP, if a business has been calling workers contract labor when they really should have been labeled as employees, you get a chance to go in and change your employee’s status before the IRS nails you instead.
So how do you know if you’ve got an employee versus a contract labor situation? That’s a really tough call sometimes and the law isn’t very clear. It’s all based on what’s known as “common law,” which means the issues have been settled in court cases instead of legislation spelling out the rules for us. The basic common law rule that defines an employee is that the service recipient (in English that’s the boss) has the right to direct and control how the service is performed.
Let me use an example: let’s say you hire me to do your taxes for you (Good idea, actually). In this case I would be contract labor to you. You will tell me what you need done, and supply me with the information to do it, but I’m going to use my software programs, my office, my stuff in general. I’m going to do it my own way, when I want to, and wear my pajamas at work if I want. That’s contract labor. (By the way, I never wear pajamas to work but I sometimes wear a St. Louis Cardinals jersey.)
But I used to be an employee at a large tax company. While I was working there, I used my boss’s software, I had certain hours that I had to be in the office, I arranged the paperwork for the files exactly as I was instructed (with the staple in the top left hand corner horizontal to the box in the big numbers in it) etc., etc.. My Cardinals jersey would have been a dress code violation and I would have been sent home. I could have even done your taxes while I was working for that company, but you weren’t really hiring me, you were hiring that company that I worked for.
You see how those two examples are different? Even though there isn’t an absolute, defining definition of what makes a person an employee, it’s sort of like Justice Potter Stewart’s famous quote about obscenity, “…I know it when I see it.”
I work with a lot of clients who are classified as 1099 contract laborers but should be labeled as employees. Most of them will never file a complaint with the IRS for fear of losing what jobs they do have, so employers have been pretty safe up until now. But the IRS isn’t stupid (Yes, I put that in writing). If I can look at a 1099 MISC and figure out that the person is really an employee instead of contract labor, the IRS is able to set up a computer screen and they’re going to be able to target suspicious 1099s as well. Did I mention, they’ve been updating their equipment? Faster, stronger, better—it’s like the $6 million man but more expensive.
So how do the people you hire stack up? If you’re paying people as employees, and properly paying your withholding taxes, then you’ve got nothing to worry about. If you’ve got employees but you’re paying them as contract labor it’s time to take a good hard look and decide if you’re doing the right thing. Using the common law test of “direct and control” are these people really contract labor or should you reclassify them as employees? If they should be called employees, you’ll want to find out more about the Voluntary Classification Settlement Program.
The VCSP has a whole list of requirements and there will be costs attached. Although that’s a little scary, it’s much better than the costs associated with an audit over your worker classification. To find more information about the VCSP, here’s a link to the IRS website: http://www.irs.gov/businesses/small/article/0,,id=246013,00.html
It’s perfectly legal to hire contract labor—it’s a very normal, regular part of business and many businesses couldn’t function without it. When you cross that line, when you’re really hiring employees but you’re just calling them contract labor to avoid paying payroll taxes– that will get you into trouble.