The IRS Says That You Can Contribute More to Your IRA and 401(k) in 2019

Late last week, the IRS announced increased contribution limits for IRAs, 401(k)s and other retirement plans. IRAs have been stuck at $5,500 since 2013, but are finally moving up to $6,000 starting in 2019. If you save in a 401(k), including a Solo K, the good news is that your contribution limits were increased too, with employee contributions increasing from $18,500 to $19,000 and total 401(k) contributions (employee and employer) reaching $56,000. The IRS announcement and additional details can be found here.

Health savings account (HSA) owners also won a small victory with individual contribution maximums increasing by $50 to $3,500, and family contribution amounts increasing by $100 to $7,000.

Breakdown

Here’s a quick breakdown on the changes:

  • IRA contribution limitations (Roth and Traditional) increased from $5,500 to $6,000, and there is still the $1,000 catch-up amount for those 50 and older.
  • 401(k) contributions also increased for employees and employers: Employee contribution limitations increased from $18,500 to $19,000 for 2019. The additional catch-up contribution for those 50 and older stays the same at $6,000. The annual maximum 401(k) (defined contribution) total contribution amount increased from $55,000 to $56,000 ($62,000 for those 50 and older).
  • HSA contribution limits increased from $3,450 for individuals and $6,900 for families to $3,500 for individuals and $7,000 for families.

These accounts provide advantageous ways for an individual to either save for retirement or to pay for their medical expenses. If you’re looking for tax deductions, tax deferred growth, or tax-free income, you should be using one or all of these account types. Keep in mind there are qualifications and phase out rules that apply, so make sure you’re getting competent advice about which accounts should be set up in your specific situation. Lastly, remember, all of these accounts can be self-directed and invested into assets you know best.

Legally Raising Money for Others

If you are receiving a fee for assisting someone else’s company in raising money, then you must operate within the confines of securities laws. These laws provide three different ways in which one may legally raise money for another company for a fee. You can’t get a “commission” or “bonus” or anything of value for bringing an investor to another company or person unless you fit into one of these three categories:

Broker Dealer License

First, if you are licensed and are registered with an SEC registered broker dealer, you may receive commissions and other forms of compensation for raising money in public or private offerings (e.g. private placements).  The newest form of registration from FINRA is designed to license and regulate those who operate as “investment bankers,” called a “Series 79 license.” This license allows a holder to collect commissions and other fees for raising funds for an offering of equity (e.g. stock) or debt (e.g. notes or bonds). In addition to passing the licensing test, you’ll need to associate with a broker dealer.

Finder’s Fee

Second, if you take a limited role in the raising of funds and are paid a flat or hourly fee, as opposed to commissions based on funds raised, you may be able to be paid a finder’s fee for introducing investors to others. A finder’s fee can only be paid to a finder so long as:

  1. The finder isn’t involved in negotiations of the securities being sold.
  2. The finder doesn’t discuss the details of the securities.
  3. The finder isn’t paid based on money raised (e.g. no commission).
  4. The finder doesn’t perform “finding” services on a regular basis.

In sum, a finder’s fee may be paid but only to someone who makes introductions of potential investors, and the fee amount must be based on some factor other than compensation relating the persons or amount of securities sold to those introduced by the finder.

Director or Officer of Offering Company

Third, you may be able to assist in raising funds for another if you are an Officer or Director of the company whom you are raising money for. The SEC promulgated Rule 3a4-1 which is a Safe Harbor from enforcement and allows someone who serves as a paid Director or Officer to assist in selling the company’s securities. There are many ways to qualify under this Rule but the most common is to meet the following criteria:

  1. Be paid as a Director or Officer by salary or other criteria that is not linked to sales of securities made (e.g. be the CFO or Treasurer and offer financial consulting advice in addition to working with potential investors).
  2. Can’t be associated with a Broker Dealer and cannot have a prior SEC disciplinary history.
  3. Should stay on with the company following closing of the offering so as to show your purpose as a Director or Officer was not just for raising funds.
  4. Takes a passive and restrictive role in selling the securities and refers to the CEO or President for details and negotiations.

Failure to comply with the securities laws can result in civil and criminal action. In addition, investors who can claim a failure to comply with the laws outlined above are able to rescind their investment and can subject the company’s founders and the person soliciting the investment with personal liability for any losses.

What Trump’s Lawyer, “Breaking Bad,” and “The Godfather” Teach Us About Attorney-Client Privilege

President Trump’s private lawyer, Michael Cohen, recently had his home and office raided by federal agents. But wait, isn’t all of his information attorney-client privileged? If you’re confused at how a lawyer’s records could be raided, your instincts are right. We’ve all learned about the fourth amendment, which protects us against unreasonable search and seizure, and requires the government to obtain a warrant. But, lawyer records and client information is especially protected, and any old warrant won’t allow the government to search or seize a lawyer’s records. In the case of Trump’s private lawyer, Michael Cohen, the government was able to blow past attorney-client privilege by alleging and providing credible information that they suspected Mr. Cohen was part of criminal activity himself. So, what can upstanding business owners learn from the Michael Cohen saga? Well, quite a bit.

When planning your business and tax structure with your lawyer, it is important to understand what is privileged and what is not. Often times, clients divulge information to their lawyer and wonder whether that information is “attorney-client privileged” or not.  Attorney-client privilege is an important legal protection offered to persons, companies, and organizations who provide confidential information and who seek counsel from their lawyer or law firm. Under law, an attorney cannot be required to provide attorney-client privileged information to a plaintiff in a law suit (e.g. creditor) or to a government agency (e.g. the IRS) except under limited situations. Here are a couple of common situations where you may lose attorney-client privilege and some tips to make sure your confidential information provided to your lawyers doesn’t run into the exceptions.

Exceptions to the Attorney-Client Privilege Rule

1. Third-party non-lawyer present

Was a third-party present with your lawyer when the information you want to be privileged was discussed. For example, was your accountant or financial adviser present when discussing information you want to remain confidential and to privileged? Keep in mind that if a third-party is present in a meeting or on a conference call then that third-party may be required to provide information or documents from the meeting and that your accountant, consultant or adviser can’t raise the attorney-client privileged defense for you unless they’re actually your attorney. If a third-party professional does need to be hired (e.g. an accountant or CPA), that third-party can be hired or brought into the matter by the attorney and the privilege may remain intact. This is known as a “Kovel” hiring of the accountant, and stems from a case where a lawyer engaged an accountant for the client, and the accountant’s work was therefore covered under the lawyer’s attorney-client privilege.

Tip: For sensitive matters where you want information to remain confidential and privileged, do not involve outside parties as those outside parties or non-attorney advisers cannot raise the attorney-client privileged defense.

2. Only legal advice is attorney-client privileged

Only information exchanged when seeking legal advice is attorney-client privileged. This is especially tricky for companies who have their own “in-house” legal counsel who also offers business advice. Only the information exchanged that pertains to legal advice would be privileged. For example, was an organization chart of the company’s holdings “privileged” when provided to the company lawyer who also manages those assets for the business? Also, what if that lawyer disseminated that organization chart to accountants, property managers, or other non-lawyers? If they did, then that information is no longer attorney-client privileged.

Tip: If you have sensitive documents or information you want to keep in communication only with your lawyer, ask your attorney to identify the document as “Attorney-Client Privileged” and do not provide it to non-lawyers.

3. If the lawyer is on the crime, it is no longer attorney-client privileged

This tip comes compliments of the Michael Cohen case outlined at the beginning of this article. You may also think of “Breaking Bad’s” famed lawyer, Saul Goodman. Or maybe you’re “The Godfather” kind of person, and you think of the mafia lawyer, Tom Hagen. In the case of Goodman and Hagen, they were lawyers who were part of the criminal enterprise of their bosses. As a result, their records are not protected by attorney-client privilege.

Tip: While this third scenario is less likely applicable to our readers, I hope, it’s more fun to talk about than when your accountant can receive incriminating information.

Remember that not all information provided to your lawyer needs to be attorney-client privileged. Keep these tips in mind when communicating highly-sensitive information to your attorney, and let your attorney know before you provide the confidential information that you intend it to be privileged, so that they can ensure that your information is properly handled and so that non-lawyer third-parties are only involved when the privilege can be maintained.

Three Instances of When You Need a New Subsidiary Entity for Your Business

Photo of an empty, minimalist boardroom overlooking an empty field.Are you growing your business? Adding new products or services? New locations? Adding partners or owners? If so, these are all instances when you should consider setting up a subsidiary or other new entity for your existing company. While you can run multiple streams of business through one entity, there are tax, asset protection, and partnership reasons why you may want to open up a new subsidiary entity for your new activity.

Let’s run through a few common situations when it makes sense to open up a subsidiary entity. And by subsidiary, I mean “a new entity which is owned wholly or partly by your primary business entity or by a common holding company.” Your new subsidiary could result in a parent and child relationship where your primary entity (parent) owns the new subsidiary entity (child), or it could be a brother and sister type structure where the primary business is a separate entity (brother) to the new entity (sister) and the two are only connected by you or your holding company that owns each separately and distinctly. (See the diagrams below to view the differences.)

I. Adding a New Product or Service

You may want a new entity to separate and differentiate services or products for liability purposes. For example, let’s say you are a real estate broker providing services of buying and selling properties and you decide to start providing property management services. Because the property management service entails more liability risk, a new entity owned wholly by your existing business could be utilized. The benefit of the new subsidiary is that if anything occurs in the new property management business, then that liability is contained in the new subsidiary and does not go down and affect your existing purchase and sale business. On the other hand, if you ran the property management services directly from the existing company without a new subsidiary and a liability arose, then your purchase and sale business that is running through the same entity would be effected and subject to the liability.

For tax purposes, in this instance, the income from the new subsidiary entity (child) will flow down to the parent entity without a federal tax return, and as a result, there is no benefit or disadvantage from a tax planning standpoint.

 

Diagram displaying the Parent-Child Subsidiary structure

 

II. Opening a New Location

What if you’re establishing a new retail or office location for your business? Let’s say you are a restaurant opening up your second location. For asset protection purposes, you should consider setting up a second entity for the new location. This can limit your risk on the lease (don’t sign a personal guarantee) for the new location or for any liability that may occur at the new location. In this instance, if one location fails or has liability, it won’t affect the other location as they are held in separate entities. The saying goes, “don’t put all your eggs in one basket.” In this case, the basket is the same entity and the locations are your eggs.  In the multiple location scenario, you should consider the brother-sister subsidiary structure such that each location is owned in a brother-sister relationship (e.g. neither owns the other) and their common connection is simply the underlying company (or person) who owns each entity for each location. Because both locations have risk it is useful for each to have their own entity and not to own each other (as can occur in the parent-child subsidiary). When structured in a brother-sister relationship, the liability for each location is contained in each subsidiary entity and cannot run over into the other subsidiary entity (the sibling entity) or down to the owner (which may be you personally or your operational holding company).

For tax purposes, the brother and sister subsidiary income (usually single member LLCs) flows down to the parent or primary entity where a tax return is filed (usually an S-Corp). (See the diagram below for an illustration.)Diagram displaying the Brother-Sister Subsidiary structure

III. Adding a New Partner

Maybe you’re starting a new business or operation where you have a new partner involved. If this partner isn’t involved in your other business activities or your existing company, it is critical that a new entity be established to operate the new partnership business. If you have an existing entity where you run business operational income (e.g., an S-Corporation), then this entity may own your share of the new partnership entity (e.g., an LLC) with your new partner. Your share of the new partnership income flows through the partnership to your existing business entity where you will recognize the income and pay yourself. In this instance, your existing entity is the parent and the new partnership is a partial-child subsidiary. The new partnership entity will typically file a partnership tax return.

IV. California Caveat

Because of gross receipts taxes in California, you may use a Q-Sub entity model where the subsidiary entity is actually another S-Corporation and is called a Q-Sub. This is available only when the parent entity is an S-Corporation and can avoid double gross receipts tax at the subsidiary and parent entity level.

Make sure you speak to your tax attorney for specific planning considerations as there are asset protection and tax considerations unique to each business and subsidiary structure.

Solo K 5500-EZ Requirement and $15,000 Failure to File Relief

Up close photo of an egg-shaped egg timer.Do you have a Solo 401(k)? Have you been filing form 5500-EZ each year for the Solo 401(k)? Are you aware that there is a penalty up to $15,000 per year for failure to file? While some Solo 401(k)s are exempt from the 5500-EZ filing requirement, we have ran across many Solo 401(k) owners who should have filed, but have failed to do so.

The return a Solo 401(k) files is called a 5500-EZ, and it is due annually on July 31st for the prior year. If you have a Solo 401(k) and you have no idea what I’m talking about, stay calm, but read on.

Benefits of Solo 401(k)s

One of the benefits of a Solo 401(k) is the ease of administration and control, because you can be the 401(k) trustee and administrator. However, as the 401(k) administrator and trustee, it is your own responsibility to make the appropriate tax filings. This would include filing any required tax returns for the 401(k).  Solo 401(k)s with less than $250,000 in assets are exempt and do not need to file a 5500-EZ. All plans with assets valued at $250,000 or greater must file a form 5500-EZ annually. A tax return is also required for a Solo 401(k) when the plan is terminated, even if the plan assets are below $250,000. Recently, more and more Solo 401(k) owners have contacted us because they set up their Solo 401(k) online or with some other company, and were never made aware that they are supposed to file a 5500-EZ when their plan assets exceed $250,000.  Some of these individuals have multiple years in which they should have filed the 5500-EZ, but failed to do so. The penalties for failing to file a 5500-EZ when it is required can be quite severe, with fees and penalties as high as $15,000 for each late return plus interest.

Failure to File Relief

Fortunately, the IRS has a temporary pilot program that provides automatic relief from IRS Late filing penalties on past due 5500-EZ filings.  The penalty relief began as a temporary program in 2014 and was made permanent via Rev Proc 2015-32.

In order to qualify for this program, your Solo 401(k) plan must not have received a CP 283 Notice for any past due 5500-EZ filings, and the only participants of your Solo 401(k) plan can be you and your spouse, and your business partner(s) and their spouse. There is a $500 fee due for each delinquent return up to a total of $1,500 or three years.  This program is available to all Solo 401(k) plans, regardless of whether it is a self-directed plan.

The IRS has provided details via Rev Proc 15-32. In order to qualify and receive a waiver of penalties under the program, you must follow the program exactly.  In short, you must do all of the following:

  1. File all delinquent returns using the IRS form in the year the filing was due. This must be via paper form.
  2. Mark on the top margin of the first page, “Delinquent Return Submitted under Rev. Proc. 2015-32.”
  3. Complete and include IRS Form 14704.
  4. Mail all documents to the IRS, Ogden, UT office.

In sum, if you have a Solo 401(k) plan that should have filed a 5500-EZ for prior years, then you should take advantage of this program, which will save you thousands of dollars in penalties and fees.  If you have any questions about this program or would like assistance with submitting your late 5500-EZ filings under this program, please contact our law firm as we are assisting clients with current and past due 5500-EZ filings for their Solo 401(k)s.