Taxation of the Cloud Still Hazy

(AICPA) While the coined term “cloud computing” no longer sounds foreign to consumers or businesses, and most certainly not to tax professionals, taxpayers continue to struggle when trying to identify the sales tax issues surrounding the cloud. Taxpayers are increasingly seeking guidance from tax advisers or from state revenue departments via letter rulings to determine the taxability of their products. Often, taxpayers are taken by surprise when a product they have been providing to their customers has morphed into a taxable item due to software elements or enhancements.

Tax challenges stretch across the three major cloud service offerings: software as a service (SaaS), platform as a service (PaaS), and infrastructure as a service (IaaS). As far as state-issued guidance is concerned, over the last few years, SaaS has seen a wide variety of responses across many states. However, with limited, fact-driven guidance from the states, there is still a great deal of uncertainty about whether variations of SaaS offerings are subject to sales tax in a number of states, and many states still lag in providing clear statutory or regulatory guidance. In addition, how sales tax applies to SaaS sales is just a small piece of the unknown territory of cloud taxability. Most states are still silent as to how PaaS and IaaS are taxed both for state income and sales and use tax purposes, with minimal guidance available on the nexus and sourcing issues surrounding any cloud services.

This column does not discuss basic cloud computing and the tax issues surrounding it but, instead, updates readers on some recent state guidance on cloud service offerings. This discussion is by no means an all-inclusive or exhaustive list of guidance that has been issued to date. Rather, this column highlights a few examples of the trends appearing at the state level. The State & Local Taxes column in the December 2011 issue of The Tax Adviser contains a more comprehensive discussion of the initial guidance set forth by the states in this area.

Storm Clouds Ahead

As noted above, in recent years, many states have begun to specifically address the taxability of the SaaS product model through administrative and regulatory guidance. Below are a few notable examples.

Pennsylvania

In May 2012, Pennsylvania publicly reversed its prior position on the sourcing of SaaS for tax purposes. Per a 2012 letter ruling, a SaaS provider was purchasing and installing software on servers that was accessible by both its employees and its customers for a fee. The Department of Revenue ruled that the provider was subject to use tax on software used by its employees, while the charges to the customers for electronically accessing the same software were subject to sales tax. Since Pennsylvania defines computer software as tangible personal property, it is subject to sales and use tax. In accessing the software, the user, whether the employee or the customer, is exercising a license to use it and has control or power over the software at the user’s location, not where the server hosting the software is located. Consequently, canned software accessed remotely is subject to sales and use tax when the end user is located in Pennsylvania. Earlier, the commonwealth had issued a ruling indicating that the location of the server was paramount in determining whether SaaS was subject to tax. With this more recent ruling, Pennsylvania alerted taxpayers that, for sales tax to apply, it was no longer taking the position that the server hosting the application must be located in the commonwealth.

Texas

In July 2012, Texas issued a detailed ruling on cloud computing. The topics addressed included (1) data-processing services, including data storage, manipulation, and retrieval; (2) data transfer fees and incidental usage fees; (3) bulk and transactional email-sending services for businesses and developers; (4) taxable information services, such as gathering data from around the web and making it available to customers in the form of lists and searchable data; (5) the sourcing of data-processing and information services for local tax purposes; and (6) determining the proper local sales tax rate in the event a sales office, technology development office, or data center is created in the state.

The state continues to tax most cloud-computing services as data-processing services with a few of the other services being taxed as information services or telecommunications. The definition of data-processing services includes computerized data and information storage or manipulation, as well as use of computer time for data processing. In addition to discussing common cloud offerings, incidental usage fees associated with cloud computing are also highlighted as subject to tax as data processing. It should be noted that Texas exempts 20% of data-processing and information services charges from sales tax.

Utah

Per a May 2012 ruling, taxable “[r]e­motely accessed software includes hosted software, application service provider (ASP) software, software-as-a-service (SaaS), and cloud computing applications.” License fees for remotely accessed prewritten software are taxable if the purchased software is used in Utah. If remotely accessed software is used at more than one location and, at the time of the transaction, the buyer provides the seller a reasonable and consistent method for allocating the transaction between those locations, the seller must source the transaction to those locations. If the buyer does not provide the seller with this information, the seller must source the transaction to the buyer’s address. Utah is one of the few states that discuss the ability to use a multiple-points-of-use methodology to source revenue from cloud service offerings. It should be noted that Utah had previously followed Pennsylvania’s historic position of looking at the server location in determining which SaaS transactions were taxable.

The Friendly Skies

While some states are looking for ways to tax cloud service offerings, other states have decided not to tax SaaS products. The following are a few examples of these efforts, which may serve to encourage cloud service providers to relocate to these states.

Colorado

Effective March 1, 2010, through June 30, 2012, standardized software was subject to sales and use tax in Colorado, regardless of how the software was acquired by the purchaser or downloaded to the purchaser’s computer.

Effective July 1, 2012, the tangible personal property definition excludes standardized software that is not delivered via a tangible medium. Software provided through an application service provider, delivered by electronic software delivery, or transferred by a load-and-leave software delivery is not considered delivered to the customer in a tangible medium. The legislation effectively reinstates an exemption for electronically delivered software that was in effect prior to March 1, 2010. In addition, there has been some uncertainty about how Colorado taxed SaaS during the brief period that electronically delivered software was subject to tax. This is a perfect illustration of how difficult it is for taxpayers to track the numerous changes in the sales tax treatment of these items, even changes that happen in a single state. It should be noted that, although Colorado does not tax SaaS at the state level, this may not be true locally, as discussed later.

Virginia

In April 2012, Virginia issued a ruling supporting its long-established exemption from retail sales and use tax for “services not involving an exchange of tangible personal property which provide access to or use of the Internet and any other related electronic communication service, including software, data, content and other information services delivered electronically via the Internet.” In the ruling, the Department of Taxation ruled that a taxpayer providing access to a web-based portal via the internet is not providing tangible personal property. As such, charges for access to a web-based portal that the taxpayer refers to as cloud-computing services are not subject to the Virginia retail sales and use tax.

Fact-Specific Predictability

Many states that tax cloud service offerings have issued rulings that hinge on specific fact patterns. In those states, determining SaaS taxability must be done on a case-by-case basis. Several tests have developed in the analysis of the applicability of sales tax to SaaS, including the transfer of ownership and control, the transfer of title, and the true object test.

Massachusetts

In Massachusetts, several fact-specific rulings have been issued over the past several years, many dependent on the true object of the transaction. In addition to these, the commonwealth recently issued a ruling outlining various cloud scenarios and their taxability. For example, sales of cloud computing may result in two different tax outcomes based on whether the customers are using their own software or open-source (free) software provided by third parties or using the software licensed by the provider:

1. Sales of cloud-computing services using the customer’s own software or software available free on the internet are not taxable when sold to customers in Massachusetts.
2. However, sales of cloud-computing services that use the provider’s software licenses are taxable when sold to customers in Massachusetts, whether or not there is a separately stated charge for the software and whether or not the customer sublicenses the software.

Further, on Feb. 7, Massachusetts issued a draft directive for public comments that were due by Feb. 22. The directive was drafted in response to a large number of ruling requests pertaining to the computer industry and addressed the application of the Massachusetts sales and use tax to sales of software- and computer-related services. Specifically, the directive addressed sales of SaaS, cloud-computing, and business solutions, all of which involve software, sometimes bundled with services that are not subject to sales tax.

The directive states that a transaction will be considered a taxable transfer of prewritten software, based on a list of factors, which will be considered cumulatively with no one factor being determinative, including the following: a transfer of ownership; the ability of a customer to access the software at any time, enter and manipulate its own information, and run reports; little intervention in the functionality of the software by the seller; the seller’s use of the term ASP in describing itself or SaaS in describing its product; and granting a customer access to the software even when no software is transferred to the customer.

For a transaction to be treated as a nontaxable service, factors that will be considered include: the seller is providing data-processing services or information services; the customer does not interface with the prewritten software; the seller provides a personal or professional service; and the seller provides custom software. Taxpayers and practitioners should follow any updates from the Department of Revenue resulting from the feedback to the directive.

Nebraska

Nebraska recently focused on the transfer of title as a determining factor in taxation. In a July 2011 information guide, the Department of Revenue stated that an ASP’s charges for services that allow Nebraska customers remote access to software applications via the internet or other online connection are not taxable when the ASP retains title to the software and does not grant a license with ownership rights to the customer. This is true regardless of whether the software is located on a server in Nebraska or outside the state. The ASP is responsible, however, for paying use tax on its purchase of software if the software resides on a computer in Nebraska.

South Carolina

South Carolina is unique in that it taxes ASP services, including them as a subset of tangible personal property—communications. Nonetheless, the state recently issued a taxpayer-favorable ruling. In this ruling, a medical practice’s nonitemized monthly charge for a medical billing service and a software product accessed via an ASP in South Carolina was not subject to sales and use tax because the transaction was considered a sale of nontaxable data processing. As a general rule, software accessed via an ASP is subject to the South Carolina sales tax when sold alone. In this case, however, the state looked to the true object of the transaction. Consequently, the portion of the charge for software was not taxable, since the true object of the transaction in which the software and billing service were sold for one nonitemized monthly charge was data processing.

Tennessee

Tennessee rulings on taxability give significant weight to the control over the software. In one ruling, a taxpayer’s charges for customer referrals, website advertising space, customer tracking services, and web­site services were not subject to Tennessee sales and use tax. The taxpayer operated a website where customers could choose a vendor and access information about the vendor. Customer referrals, advertising services, and customer tracking services are not among the enumerated services subject to sales tax in Tennessee. In addition, the services are not taxable telecommunications services because telecommunications services are only an incidental means of providing the services.32 The monthly fee for providing a vendor with a website is also a nontaxable service because the taxpayer does not transfer title, possession, or control of the website or any software to the vendor.

The reasoning applied in the ruling described above seems to prevail in Tennessee private letter rulings addressing the taxability of cloud computing as well. A monthly fee a software vendor charged for online access to customer relationship management software was not subject to Tennessee sales and use tax. No sale or use of tangible personal property occurs in Tennessee when a taxpayer accesses the software application via the internet, because the vendor does not transfer title, possession, or control of the software application to the taxpayer.

Data-hosting, storage, and project management services a taxpayer provided are not subject to Tennessee sales and use tax because these are not taxable services and they are not provided in conjunction with a transfer of tangible personal property. No part of the transactions could be described as the furnishing of an otherwise nontaxable service sold as part of the sale of a taxable good or service, because no tangible personal property was transferred and the taxpayer does not sell, lease, license, or otherwise provide the use of computer software to its clients in conjunction with these services.

Wisconsin

Instead of looking at the control of the actual software, Wisconsin focuses on where the server itself is controlled. In frequently asked questions (FAQs) issued in January 2013, charges for accessing prewritten computer software located on a vendor’s server are not taxable if a customer in Wisconsin does not have access to or control over the vendor’s server. However, charges for accessing a prewritten computer software that is downloaded to the customer’s equipment, or equipment that the customer has control over, are taxable in Wisconsin. The consideration of whether a customer has control over the server could raise potential issues for other cloud service offerings such as IaaS and PaaS.

PaaS and IaaS Taxability

Although many states have specifically addressed the taxability of SaaS, most states are silent about the taxability of IaaS and PaaS. Similar to SaaS, the determination depends on whether the states consider a particular cloud-computing offering to be tangible personal property, a taxable service, or a transaction not subject to tax.

In a recent set of FAQs, the Wisconsin Department of Revenue addressed the taxability of IaaS and PaaS. In an IaaS offering, charges for storage on another person’s server over which the customer does not have control or the ability to physically access are not taxable in Wisconsin. As a general rule, an IaaS service provider owns, maintains, operates, and houses the equipment, such as hardware, servers, and network components, and the customer uses (but does not have control over) the equipment over the internet.

PaaS, although specifically addressed in the FAQs, received very little guidance. According to the FAQs, since PaaS contains elements of both SaaS and IaaS, taxability will depend on the facts and circumstances.

Emerging Trends

In addition to struggling with determining the taxability of various service offerings, taxpayers should also be aware of some of the trends that are emerging via all of the rulings that have been issued. These trends include the importance of accurate and complete documentation, home rule tax issues, retroactive moratoriums, and aggressive nexus positions.

Documentation

Although the taxability of cloud computing still lacks clarity in many states, many times the determination is made on a case-by-case basis through considering all available facts and documentation. Taxpayers should be prudent in maintaining readily retrievable records with a detailed product description, as well as books and records breaking down the charges made into product categories. Though cumbersome, in an audit situation a good set of supporting facts may favorably shift the taxability determination or at least reduce some penalties due to a good-faith error.

For instance, a Texas taxpayer was unable to establish by clear and convincing evidence the number and type of nontaxable software transferred to customers for their use. Even though the taxpayer could prove by clear and convincing evidence that the software transferred was not subject to sales tax, an assessment was affirmed due to lack of support of the exact amounts of the transfers. In addition, the taxpayer failed to show by a preponderance of the evidence that it exercised due diligence in determining the products’ taxability and, as a result, was not entitled to a waiver of penalties.

Two rulings in Indiana also provide good examples of the importance of having support documentation. Although Indiana taxes SaaS, it does not tax prewritten software. Last year, the state issued two rulings with two different tax consequences. In one ruling, software license purchases made by a legal services provider in Indiana were not exempt from the Indiana use tax because they were purchases of tangible personal property. The taxpayer claimed that the purchases were exempt because the provider acquired a license to retrieve and store information, and additional users could only access the information. The taxpayer also argued that the software license purchases did not involve a transfer of tangible personal property and therefore should not be subject to the Indiana sales and use tax. The state relied on the broad definition of tangible personal property to impose Indiana use tax. For Indiana sales tax purposes, tangible personal property includes prewritten computer software. Only custom software specifically designed for the purchaser is not subject to sales tax. Further influencing the ruling, the taxpayer’s position was hurt because the taxpayer could not provide documentation supporting its position.

In the other ruling, an Indiana retailer was not liable for sales and use tax on its charges for the sale of “Automation Services” and “Tracker Services.” Indiana initially determined that these “web-based computer programs” involved prewritten computer software and, therefore, were taxable. However, the taxpayer provided enough support (service contracts, brochures, and other information about the services) to establish that the “Automation Services” and “Tracker Services” sold did not involve the right to use prewritten computer software.

Home Rule Localities

Taxpayers and practitioners need to be cautious when determining the taxability of cloud services in home rule localities where local governments impose their own sales and use taxes. The Colorado Court of Appeals held that a technology company’s purchase of downloaded computer software was subject to the Boulder City use tax because the tax applies to all downloaded software regardless of the method of conveyance. In addition, the court concluded that remote access to online data services and software is subject to the municipal use tax. At the same time, software provided through an application service provider in Colorado, delivered to a Colorado customer by electronic software delivery, or transferred by load-and-leave is not considered delivered to the customer in a tangible medium and, therefore, is not subject to the Colorado sales tax.

Moratorium

In various renditions of one of its tax bulletins, Vermont addresses the taxability of various services that are similar to, or may be viewed as, components of cloud computing. Originally, the state took the position that the sale of computer memory storage for large volumes of computer data, either created through the customer’s use of a computer program on a remote computer or downloaded from the customer or third party’s computer to the remote server, was subject to sales tax as the sale of tangible personal property. The bulletin was later revised to remove computer memory storage as taxable. To take this position even further, Vermont statutorily enacted a temporary moratorium on taxation of sales of prewritten software accessed remotely, effective retroactively for sales made after Dec. 31, 2006, and before July 1, 2013. Taxpayers may apply for refunds of those sales taxes, which will be refunded if the requests are made within the statute of limitation and documented to the state commissioner’s satisfaction.

Nexus

With many states considering the remote access of software to be the use of tangible personal property, it is not a far stretch for states to assert that the use of that property in a state could create nexus for a SaaS provider. Recently, in a New Mexico ruling about a web-based tool, the Taxation and Revenue Department concluded that an out-of-state taxpayer was engaged in business in New Mexico due to having subscribers in the state because it was selling a license to use the web-based tool and the license was a form of property in the state. For gross receipts tax purposes, the location of the license is the place where it will normally be used. Since the location of the license was presumed to be the end user’s business location, the out-of-state taxpayer was deemed to have property in the state. This aggressive approach not only subjects the transaction to sales tax, but also may create income tax nexus in the state.

Conclusion

As the above discussion highlights, the tax issues around cloud computing are far from being resolved. In approximately 20 states, determining cloud taxability relies on the existing rules around the taxability of software or enumerated services, such as data processing. Other states have taken the position that cloud offerings are not tangible personal property or enumerated services and are, therefore, not subject to tax in those states. However, as cloud-computing technology continues to evolve, so will state tax positions. The challenge for taxpayers is to stay current on the changes in the various tax jurisdictions.

Community Support in the midst of the Black Forest Fire

Clients & Friends,

Almost a year after the Waldo Canyon Fire, the past week has yet again been challenging for our city.  Many of our clients, friends and their employees have been affected by the fires in our community, and we’re all looking for ways to help others cope with this event. Please know that you have our support, and as a firm, we would be honored to provide solutions or resources to anyone in need.  Here are a few things to consider:

1. If you haven’t been affected by the Black Forest fire, please consider a donation to support those who have been affected.  BiggsKofford is making a special donation to Care & Share and the Red Cross.  Click here if you would like to learn how you can join us and make donations to the local non-profit organizations supporting our community.

2. If you’ve lost income or your business has been been affected, you might consider if your business has insurance coverage to replace lost income, in addition to more obvious property coverage you might have. Sometimes umbrella policies are overlooked and you end up missing benefits that you paid for.

3. In addition to business coverage, some homeowner policies include additional benefits, beyond the home itself (i.e. lost income, relocation costs, temporary housing, business records, etc.). Remember to capture those costs, document them, and make a complete claim. Don’t forget to claim coverage that you’ve paid for.  If you might be evacuated be sure to use your smart phone to take pictures and video of your contents before you leave, should you need to make an insurance claim.

4. We also suggest creating a personal disaster recovery plan (maintaining backup records, documenting assets in your home and business, create an “evacuation packing list”, etc.). Other ideas to help with this type of planning can be found here.

5. Other resources can be found here:

• Pikes Peak Region Business Recovery Fund: Through a community collaboration of banks, the Colorado Springs Regional Business Alliance and other community partners, Colorado Enterprise Fund is offering a special loan program of up to $10,000 to help rebuild small businesses in the Pikes Peak region.
• CenturyLink offering fire victims free emergency call forwarding service: call 800-573-1311 or go to www.centurylink.net and “log in”.
• Small Business Development Center, hosted by the UCCS College of Business, offering assistance to the fire-affected businesses: visit www.elpasoco.com.
• Humane Society of the Pikes Peak Region offering food and shelter for evacuated animals: call 719-473-1741 if you’ve lost an animal.

BiggsKofford is a proud member of this community. It is going to take effort and support from everyone to get past this disaster.  If you have need for personal support during this natural disaster, we would be happy to help you.

Sincerely,

Chris Blees, CEO of BiggsKofford

Vote for BiggsKofford in the “Best Businesses of Colorado Springs”

The Colorado Springs Business Journal brought back their “Best Businesses of Colorado Springs” contest. Please vote for BiggsKofford! Vote here: http://copubco.secondstreetapp.com/Colorado-Publishing-Co-Voters-Choice

Here are a few other of our trusted clients or friends we’d like to encourage you to vote for!

• Best Bean Counters: BiggsKofford
• Best Place to Get Your Spin on: SANDIA
• Best Place to Learn From Books and Professors: UCCS
• Best Logo Slinger: Allegra
• Best Place to Call When your Computer Crashes: Amnet
• Best Place to Go When the Garage Sale Doesn’t Work: Blue Star Recyclers

 

Senate approves Internet sales tax proposal

(AccountingToday) The Senate has approved legislation requiring online retailers to collect sales taxes from Internet sales, even if they don’t have a physical presence in the state where the customer resides.

The Marketplace Fairness Act has attracted wide support from brick-and-mortar retailers who have seen shoppers coming to their stores to check out merchandise, only to order it online, sometimes while still in the store from their smartphones. Many revenue-starved state governments have also supported the bill. The legislation even garnered the support of e-commerce giant Amazon.com, which has traditionally fought against online sales taxation, but has been expanding its warehouse presence across the country.

Smaller Web retailers have opposed the legislation, however, arguing that it would be too difficult to calculate and collect sales taxes from every state and locality that requires them. They have been supported by eBay, which argued that the exemption level of $1 million in sales for small e-tailers is too low. The bill is also expected to face opposition from many lawmakers in the House, where the prospects for its passage are uncertain. The Senate had approved the bill in nonbinding votes in recent months and was widely expected to eventually pass the legislation.

The bill authorizes each member state under the Streamlined Sales and Use Tax Agreement, the multistate agreement for the administration and collection of sales and use taxes adopted on Nov. 12, 2002, to require all sellers not qualifying for a small-seller exception (which is applicable to sellers with annual gross receipts in total U.S. remote sales not exceeding $1 million) to collect and remit sales and use taxes with respect to remote sales under provisions of the agreement, but only if the agreement includes minimum simplification requirements relating to the administration of the tax, audits, and streamlined filing.

The bill now heads to the House. The effort received a boost last week when former Vice Presidential candidate and House Budget Chairman Paul Ryan, R-Wis., spoke in favor of the concept of ending special tax treatment for online-only retailers.

If you have any questions about how this bill may affect your business, e-mail Greg Gandy or Mike McDevitt.

New I-9 Forms: Five Important Things To Know

(www.payrollcity.com) The I-9 form is a document that employers must keep on file to verify the identity of each new employee (both citizen & non-citizen). Employees fill this form out once, at the time they are hired (but not before accepting a job offer) along with providing the required identification. Employers must use the new I-9 form for all employees hired on or after May 7th, 2013. The new Form I-9 is available on the USCIS website at www.uscis.gov/i-9.

1. The differences between the old and new I-9 forms

It’s important to understand the differences between the two forms, so you can easily recognize whether or not you have the correct one on file. The new I-9 form is much more modern and user-friendly, and employers need not be afraid to use it. It was designed to eliminate some of the confusion from the old I-9 form. Now 2 pages long (plus 6 pages of instruction and 1 page of acceptable documents), the new I-9 form allows employees to provide additional information such as email addresses and telephone numbers. While some of these fields are optional, this is not expressly mentioned on the form itself, only in the instructions. Additionally, the new form no longer permits PO Boxes to be used as addresses. Much of the form has been re-formatted for simplicity, readability, and added clarification.

2. Existing employees should NOT fill out the new I-9.

You should not re-verify employment for existing employees unless you have a valid reason to question the authenticity of the original documents provided at time of hire. Doing so could be construed as discriminatory, and should be avoided.

3. Know what forms you should keep on file

All employers are required to keep a copy of the I-9 form and Federal W-4 form. Check with your state to see if there are additional requirements. For example: many states have an additional W-4 form, and some states, like Colorado, have a Verification Form. If an employee does not fill out a state W-4 form, make sure that the state allowances always match their federal allowances for payroll.

4. Understand the consequences of non-compliance!

In addition to fines as much as $1,100 per form, employers may be subject to criminal liability in some circumstances, as well. I-9 audits are on the rise, and even though 100% of your workforce may be legally allowed to work, you can still incur hefty fines simply by not maintaining valid records.

5. Make a To-Do List

In addition to downloading a copy of the new I-9 form, and carefully reviewing its instructions, you may wish to provide training to all employees and managers involved in administering the new I-9 form. Take care to take “smart steps” with regard to its implementation – especially if you do so prior to May 7th. You may wish to note any questions you have and consult with legal counsel where appropriate.

If you have any questions about how this change will affect your business, call BiggsKofford at (719) 579-9090.

May Entrepreneurial Corner | Financial Markets Update: Plan and Manage Your Personal Wealth

Financial Markets Update: Plan and Manage Your Personal Wealth

A Panel Discussion Led by Chris Blees, with panelists including:    Brandon Brown, Senior Resident Director & Wealth Management Advisor, Merrill Lynch Brian Colvert, Financial and Portfolio Manager, UBS Financial Services Bud Rainsberger, President, Rainsberger Wealth Advisors

We’ll Discuss:   Current trends in investment strategies Outlook for industries and asset classes Asset protection techniques Thursday, May 16, 2013   7:30 – 9 a.m. BiggsKofford’s Office, 630 Southpointe Court, Suite 200

AM&AA Deal Stats Survey | July through December 2012

The Alliance of Mergers & Acquisition Advisors (AM&AA) just came out with deal stats from the last half of 2012. To check out the most up-to-date M&A activity, check out their survey results here.

April Entrepreneurial Corner | Local Commercial and Residential Real Estate Markets Update

Local Commercial and Residential Real Estate Markets Update

Led by: Brian Bahr, Founder of Challenger Homes Peter Scoville, Principal at Cushman & Wakefield Fred Veitch, Vice President of Nor’Wood Development

We’ll Discuss: The insiders’ views of the future of our local market Recent local trends with both residential and commercial marke Where the next opportunities in real estate will come from Thursday, April 25, 2013 7:30 – 9 a.m. BiggsKofford’s Office, 630 Southpointe Court, Suite 200

Special Invitation | Chancellor’s Leadership Class Event

What are your chances for being audited? IRS’s 2012 data book provides clues.

(Thompson Reuters) The IRS has issued its annual data book, which provides statistical data on its fiscal year 2012 activities. As this article explains, the data book provides valuable information about how many tax returns IRS examines (audits) and what categories of returns IRS is focusing resources on, as well as data on other enforcement activities such as collections. The figures and percentages in this article compare returns filed in calendar year 2011 and audited in FY 2012 to returns filed in calendar year 2010 and audited in FY 2011.

What are the chances of being audited?

Of the 143,399,737 individual tax returns filed in calendar year 2011, 1,481,966 were audited. This works out to roughly 1.0%, down slightly from 1.1% the previous year. Of the total number of individual income tax returns audited in FY 2012, 487,408 (32.9%) were for returns with an earned income tax credit (EITC) claim, a slight increase from the 483,574 (30.9%) of all audited returns for FY 2011.Only 24.3% of the individual audits were conducted by revenue agents, tax compliance officers, tax examiners and revenue officer examiners. That’s slightly down than the 25% figure for the previous year. The 75.7% balance of the audits were correspondence audits, slightly up from 75% for the previous year.

Following are selected audit rates for individuals not claiming the EITC:

• For business returns other than farm returns showing total gross receipts of $100,000 to $200,000, 3.6% of returns were audited in FY 2012, down from 4.3% in FY 2011.
• For business returns other than farm returns showing total gross receipts of $200,000 or more, 3.4% of returns were audited in FY 2012, a decrease from 3.8% in FY 2011.
• Of the returns showing farm (Schedule F) income, .5% were audited in FY 2012 versus .6% in FY 2011.
• For returns showing total positive income of $200,000 to $1 million, 2.8% of returns not showing business activity were audited, and 3.7% of returns showing business activity were audited. The audit rates for such returns were 3.2% and 3.6%, respectively, for the previous year.
• For FY 2012, the audit rate for returns with total positive income of $1 million or more was 12.1%, slightly down from the 12.5% rate for FY 2011.

Not surprisingly, examination coverage increased for higher income earners. For example, the percentage was 0.85% for those returns with adjusted gross income (AGI) between $100,000 and $200,000 (down from 1% for FY 2011), and 1.96% for those with $200,000 to $500,000 of AGI (down from 2.66% for FY 2011). Exam coverage increased to 8.9% for those with at least $1 million but less than $5 million of AGI (down from 11.8% for FY 2011). Similarly, coverage increased for those with at least $5 million but less than $10 million of AGI, as well as for those with AGI of $10 million or more.

Select audit rates for business returns were as follows:

• For all corporate returns other than Form 1120S, 1.5%, same as the year before.
• For small corporations with balance sheet returns showing total assets of: $250,000 to $1 million, 1.7%; $1-$5 million, 2.1%; and $5-10 million, 2.6%. For FY 2011, the percentages were, respectively, 1.6%, 1.9%; and 2.6%.
• For large corporations with returns showing total assets of $10 million or more, the overall audit rate was 17.8%, up slightly from 17.6% for FY 2011. The audit rate for these corporations increased with the size of the entity. For example, the audit rates were 10.5% for those with total assets of $10-$50 million (down from 13.4% for FY 2011); 22.7% for those with $250-$500 million (up from 17.4% for FY 2011); 45.4% for those with $5-20 billion (down from 50.5% for FY 2011), and 93% for those with $20 billion or more (down from 95.6% for FY 2011).
• For partnership and S corporation returns, the audit rate was 0.5%, as compared to 0.4% for the year before.
• IRS’s activity on other fronts.

Here’s a roundup of some of the other valuable information carried in the new IRS Data Book.

Number of returns filed.

The number of partnership returns filed (Form 1065) increased by 1.5%, and the number of S corporation returns (Form 1120S) grew by .8%. The number of C or other corporation (e.g., REMIC, REIT, RIC) returns dropped by 2.2%.The number of individual income tax returns (e.g., Forms 1040, 1040A, 1040EZ) increased by 1.8%, reflecting the second consecutive increase (likely due to improvement in economic activity) after the 2% drop exhibited in FY 2010 and the 6.7% drop shown in FY 2009.

The number of estate tax returns filed in FY 2012 increased by 145.5%, following last year’s 62.1% plunge (which was attributable to the temporary repeal of the tax for deaths in calendar year 2010 before being reinstated retroactively with a $5-million exemption as part of the Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010).

Math errors on individual returns.

IRS sent out roughly 2.7 million math error notices relating to the 2011 return.Of the total math error notices, 23.9% were for tax calculation/other taxes (which includes errors related to self-employment tax, alternative minimum tax, and household employment tax), 15.3% related to exemption number/amount, 13.4% related to the EITC, 10.6% related to the standard/itemized deduction(s), 5.3% related to the child tax credit, and 5.2% related to the first-time homebuyer credit.

Penalties.

In FY 2012, IRS assessed 28.5 million civil penalties against individual taxpayers, slightly down from 28.75 million assessed in the previous year. Of the FY 2012 assessments, the “top three” penalties in percentage terms were 60.2% for failure to pay, 24.8% for underpayment of estimated tax, and 11.5% for delinquency. On the business side, there were a total of 995,533 civil penalty assessments (down from 1,080,027 for the year before), and the “top three” penalties in percentage terms were 51.4% for delinquency, 25.8% for failure to pay, and 20% for estimated tax.

Offers-in-compromise.
In FY 2012, 64,000 offers-in-compromise were received by IRS (versus 59,000 for FY 2011), and 24,000 were accepted (up from 20,000 for the year before).

Criminal cases.

IRS initiated 5,125 criminal investigations in FY 2012. There were 3,701 referrals for prosecution and 2,634 convictions. Of those sentenced, 81.5% were incarcerated (a term that includes imprisonment, home confinement, electronic monitoring, or a combination thereof). By way of comparison, in FY 2011, IRS initiated 4,720 criminal investigations, there were 3,410 referrals for prosecution, and there were 2,350 convictions. Of those sentenced, 81.7% were incarcerated.

If you have any questions about this, please contact Gregory L. Gandy, CPA, Deborah Helton, CPA, or Michael E. McDevitt, CPA, for more information.