1. 5th Annual Tax Update presented by Harlan J. Kwiatek, CPA, JD, LLM Partner New York, McGladrey LLP June 17, 2014 Insero & Companys 2014 Accounting & Finance Education Series

2. 2012 McGladrey LLP. All Rights Reserved. 2014 McGladrey LLP. All Rights Reserved. 2012 McGladrey LLP. All Rights Reserved. 2014 McGladrey LLP. All Rights Reserved. June 17, 2014 5th Annual Tax Update 3. 2012 McGladrey LLP. All Rights Reserved. 2014 McGladrey LLP. All Rights Reserved. Todays presenter 2 Harlan Kwiatek, CPA Partner New York City, NY (212) 372-1903 Harlan.Kwiatek@McGladrey.com 4. 2012 McGladrey LLP. All Rights Reserved. 2014 McGladrey LLP. All Rights Reserved. Agenda Federal Taxes - Capital Hill Update - Tax Controversy Update State Taxes - New York State Tax Reform Update - New England States Tax Update 3 5. 2012 McGladrey LLP. All Rights Reserved. 2014 McGladrey LLP. All Rights Reserved. 2012 McGladrey LLP. All Rights Reserved. 2014 McGladrey LLP. All Rights Reserved. Capitol Hill update 6. 2012 McGladrey LLP. All Rights Reserved. 2014 McGladrey LLP. All Rights Reserved. Congressional stalemate: How did we get here? Democrats control the White House Democrats control the Senate Who controls the House? 5 7. 2012 McGladrey LLP. All Rights Reserved. 2014 McGladrey LLP. All Rights Reserved. An uneasy coalition ATRA of 2013: January 2013 House passed 257 to 167; Senate passed 89 to 8 Debt ceiling/continuing resolution: October 2013 House passed 286 to 144; Senate passed 83 to 16 Bipartisan Budget Act: December 2013 House passed 332 to 94; Senate passed 64 to 36 6 8. 2012 McGladrey LLP. All Rights Reserved. 2014 McGladrey LLP. All Rights Reserved. Result of the stalemate The deficit Or, how much is $17 trillion? 17,000,000,000,000 Dollars 314,000,000 People $54,000 Each 7 9. 2012 McGladrey LLP. All Rights Reserved. 2014 McGladrey LLP. All Rights Reserved. Federal revenue vs. spending for 2012 (actual) $2.450 $3.538 0.000 1.000 2.000 3.000 4.000 Fiscal Year 2012 (trillion) 8 Revenue Spending 10. 2012 McGladrey LLP. All Rights Reserved. 2014 McGladrey LLP. All Rights Reserved. 9 46.20% 34.50% 9.90% 3.20% 6.20% 0% 5% 10% 15% 20% 25% 30% 35% 40% 45% 50% Individual Income Taxes Social Insurance and Retirement Receipts Corporation Income Taxes Excise Taxes Other Federal revenue by source 2012 $1,132.2 billion $845.3 billion $242.3 billion $79.1 billion $151.3 billion Most federal revenues come from individual taxpayers. Personal income taxes are the largest portion of total tax revenues. Social Security and Medicare payroll taxes are the second largest source. Federal revenue by source 11. 2012 McGladrey LLP. All Rights Reserved. 2014 McGladrey LLP. All Rights Reserved. Federal revenue vs. spending for 2013 (actual) $2.813 $3.493 0.000 1.000 2.000 3.000 4.000 Fiscal Year 2013 (trillion) 10 Revenue Spending 12. 2012 McGladrey LLP. All Rights Reserved. 2014 McGladrey LLP. All Rights Reserved. Federal spending 11 13. 2012 McGladrey LLP. All Rights Reserved. 2014 McGladrey LLP. All Rights Reserved. Closing the deficit Economic growth? Less spending? More revenue? Guilty conscience? 12 14. 2012 McGladrey LLP. All Rights Reserved. 2014 McGladrey LLP. All Rights Reserved. Comprehensive tax reform President Obama Dave Camp Ron Wyden Reduce C corporation taxesa real tax increase 13 15. 2012 McGladrey LLP. All Rights Reserved. 2014 McGladrey LLP. All Rights Reserved. 14 $0 $200,000,000,000 $400,000,000,000 $600,000,000,000 $800,000,000,000 $1,000,000,000,000 $1,200,000,000,000 $1,400,000,000,000 $1,600,000,000,000 $1,800,000,000,000 $2,000,000,000,000 Total AGI Total U.S. income (AGI) by income level Source: IRS Statistics of Income for 2009 Income Level (AGI) 16. 2012 McGladrey LLP. All Rights Reserved. 2014 McGladrey LLP. All Rights Reserved. Affordable Care Act impact on the deficit Congressional Budget Office Affordable Care Act (ACA) cost estimates for 2014 2024 Gross cost $1,877 billion Less tax revenue (458) billion Net cost $1,419 billion $458 billion includes $259 billion of new penalties and excise taxes paid by employers starting in 2016 IRS determines penalties based on employee health plan information reported on new Form 1095 - Large employers file Form 1095 in 2016 for 2015 - Prepare in 2014 for 2015 data collection 15 17. 2012 McGladrey LLP. All Rights Reserved. 2014 McGladrey LLP. All Rights Reserved. ACA information reporting timeline 2014 Determine large employer status and implement data collection systems 2015 Track employee and health plan information by month 2016 Provide Form 1095 to employees by Jan. 31 and to IRS by Feb. 28 16 18. 2012 McGladrey LLP. All Rights Reserved. 2014 McGladrey LLP. All Rights Reserved. 2012 McGladrey LLP. All Rights Reserved. 2014 McGladrey LLP. All Rights Reserved. Tax Controversy Update 19. 2012 McGladrey LLP. All Rights Reserved. 2014 McGladrey LLP. All Rights Reserved. New IDR enforcement process 20. 2012 McGladrey LLP. All Rights Reserved. 2014 McGladrey LLP. All Rights Reserved. Background LB&I review of case development, audit closure times and IDR response rates - determined that IDR response rates were a major cause of delayed audit closure times - determined that best practices included discussing IDRs in advance of issuance and getting agreement on response times - rolled out new issuance process with an automated enforcement process 19 21. 2012 McGladrey LLP. All Rights Reserved. 2014 McGladrey LLP. All Rights Reserved. New IDR enforcement process Effective for all IDRs issued on or after March 3, 2014, including those related to currently open audits Automated enforcement process IRS management personnel involved at each stage Enforcement process includes IRS counsel support All LB&I examiners and specialists should have completed training on this by now LB&I directives issued 20 22. 2012 McGladrey LLP. All Rights Reserved. 2014 McGladrey LLP. All Rights Reserved. First.the good news IDRs should be issue-focused One IDR for each issue Must clearly state the issue and that the IDRs requests are relevant to the issue Pre-issuance coordination and negotiated response time Issue-focused requirement does not apply to IDR One 21 23. 2012 McGladrey LLP. All Rights Reserved. 2014 McGladrey LLP. All Rights Reserved. But . Fixed IDR response times (once agreed to) Agent can grant a 15-day extension If IDR response time is not met, automatic enforcement process begins - Delinquency notice - Pre-summons letter - Summons - Summons enforcement 22 24. 2012 McGladrey LLP. All Rights Reserved. 2014 McGladrey LLP. All Rights Reserved. Strategy points Must have open lines of communication Discuss issuing draft IDRs or including info in a letter that is not labeled as an IDR Must immediately voice concerns with IDR or with time frame for response Document reasons for requesting additional time Go up the IRS food chain to get agreement on response dates and sufficiency of IDR 23 25. 2012 McGladrey LLP. All Rights Reserved. 2014 McGladrey LLP. All Rights Reserved. Strategy points, cont. Keep a log of IDRs and responses Partial IDR responses should not be part of the enforcement process Prepare company management for worst-case scenarios - Letter to CFO/CEO - Service of summons 24 26. 2012 McGladrey LLP. All Rights Reserved. 2014 McGladrey LLP. All Rights Reserved. IRS future state what to expect 27. 2012 McGladrey LLP. All Rights Reserved. 2014 McGladrey LLP. All Rights Reserved. IRS future state doing more with less Retirements (one-third of workforce) Affordable Care Act administration FATCA administration Can IRS systems secure taxpayer information? - Identity theft is a top priority - TIGTA report Less resources for customer service and for enforcement - More automation - Less customer service Partnership examinations? 26 28. 2012 McGladrey LLP. All Rights Reserved. 2014 McGladrey LLP. All Rights Reserved. Other Current Tax Topics R&D Tax Credit - IRS Eases Restrictions on Claiming Research Credit on Amended Returns (June 2, 2014) TARS - Fully implementation required for 2014; early implementation for 2013 allowed PTIN - Impact of Loving case Cash to Accrual Method Accounting Proposal 27 29. 2012 McGladrey LLP. All Rights Reserved. 2014 McGladrey LLP. All Rights Reserved. 2012 McGladrey LLP. All Rights Reserved. 2014 McGladrey LLP. All Rights Reserved. New York State Tax Reform Update 30. 2012 McGladrey LLP. All Rights Reserved. 2014 McGladrey LLP. All Rights Reserved. Overview On March 31, 2014, the Budget Act of 2014-15 (S.6359-D/A.8559-D) was into to law by Gov. Cuomo. - Effective date of most provisions, January 1, 2015 - First quarter 2014 financial statement event Fundamental reform of NYSs tax system - Lower tax rates - Unitary taxation - Economic nexus - And much more. 31. 2012 McGladrey LLP. All Rights Reserved. 2014 McGladrey LLP. All Rights Reserved. Repeal of Bank Franchise Tax For tax years beginning on or after January 1, 2015. Article 32 taxpayers will be taxed in accordance with the provisions of the general corporate franchise tax (Article 9-A). These taxpayers will need to analyze the impact of this change, particularly to the extent that those entities relied upon administrative pronouncements issued under Article 32 in arriving at tax positions. 32. 2012 McGladrey LLP. All Rights Reserved. 2014 McGladrey LLP. All Rights Reserved. Rate reductions and increases New York corporate franchise tax rate reduced from 7.1% to 6.5%, effective for tax years beginning on or after January 1, 2016 - Alternative Minimum Tax base is repealed effective tax year 2015. Metropolitan Transit Authority (MTA) Surcharge increases to 25.6% effective for tax years beginning on or after January 1, 2015 and before January 1, 2016. - The MTA surcharge will be set based on state financial projections for years thereafter. 33. 2012 McGladrey LLP. All Rights Reserved. 2014 McGladrey LLP. All Rights Reserved. Rate reductions and increases Effective for tax years beginning on or after January 1, 2014, the tax rate is 0% for a qualified New York manufacturer. - A qualified New York manufacturer is a manufacturer having property in New York that is eligible for the investment tax credit and either (1) the fair market value of that property has an adjusted basis for federal income tax purposes of at least $1 million or (2) all of the manufacturers real and personal property is located in New York. - Large manufacturer employers (2500 or more employees that have at least $100 million in adjusted basis of property for federal income tax purposes) may be deemed a qualified New York manufacturer. 34. 2012 McGladrey LLP. All Rights Reserved. 2014 McGladrey LLP. All Rights Reserved. Rate reductions and increases The capital base tax rate will also be phased out by 2021. Repeal of Worldwide Income Tax Base for Alien Corporations - Alien Corporations now taxed only on effectively connected income. 35. 2012 McGladrey LLP. All Rights Reserved. 2014 McGladrey LLP. All Rights Reserved. Economic nexus standards Businesses subject to the corporate franchise tax and the metropolitan business tax surcharge include those that derive $1 million or more in gross receipts from activity in New York. - A corporation that is part of combined group and that has less than $1 million in receipts, but more than $10,000, is deemed to satisfy the receipts threshold if the in-state receipts of all members of the group that separately exceed $10,000 meet the $1 million threshold in the aggregate. 36. 2012 McGladrey LLP. All Rights Reserved. 2014 McGladrey LLP. All Rights Reserved. Article 32 Taxpayer Nexus Existing Article 32 nexus threshold for credit card companies transferred to Article 9-A - Such companies will be deemed to have New York nexus for corporate income tax purposes if they have (1) issued credit cards to 1,000 or more customers with New York mailing addresses (2) 1,000 or more locations in New York covered by merchant contracts to which the business remitted payments, or (3) a combined total of 1,000 or more New York customers and merchant locations. The Act does repeal the nexus rule for fulfillment services. 37. 2012 McGladrey LLP. All Rights Reserved. 2014 McGladrey LLP. All Rights Reserved. Reporting methods for corporate partners The Act requires corporate partners to compute tax under an aggregate method (as opposed to an entity method). - Under the new method, a corporate partner is deemed to have an undivided interest in the assets, liabilities, and items of receipts, income, gain, loss and deduction of the partnership and the corporate partner is treated as participating in the partnerships activities and transactions. - Accordingly, if the partnership has nexus with New York, so does all of its corporate partners, making any corporation that is a partner in the partnership subject to the franchise tax. 38. 2012 McGladrey LLP. All Rights Reserved. 2014 McGladrey LLP. All Rights Reserved. Customer-based apportionment The law combines the apportionment factor for business income and capital into a new customer- based single sales factor. - Special rules apply to certain financial institutions, allowing them to make an annual and irrevocable election to use an 8% fixed percentage method instead of customer-based sourcing. 39. 2012 McGladrey LLP. All Rights Reserved. 2014 McGladrey LLP. All Rights Reserved. Net operating losses Existing net operating loss (NOL) provisions have been revised to switch from a pre-apportionment to a post-apportionment computation, terminating the states tie to the federal NOL amount. Because of these computational changes, the Act established prior year net operating loss (PNOL) and provided transition rules related to the use of NOLs generated before Jan. 1, 2015. - A taxpayers PNOL corresponds to its NOLs generated under current law modified to account for the change to calculation on a post- apportionment basis. Taxpayers will be allowed to deduct both PNOL and newly generated NOL, subject to a 20-year carryforward period, and PNOL must be applied against the business income base before post-reform NOLs. NOLs generated in post-reform tax years may be carried back three years, provided that NOL can be carried back to a tax year beginning before Jan. 1, 2015. 40. 2012 McGladrey LLP. All Rights Reserved. 2014 McGladrey LLP. All Rights Reserved. Combined reporting provisions Applicable to tax years beginning on or after Jan. 1, 2014, the Act substantial intercorporate transaction rules with a full waters-edge unitary combined reporting with an ownership test of more than 50%. The Act does provide for an election to permit combined filing for certain commonly owned groups with a seven year irrevocable election, which is then automatically renewed for an additional seven years unless it is affirmatively revoked. 41. 2012 McGladrey LLP. All Rights Reserved. 2014 McGladrey LLP. All Rights Reserved. Other Provisions Elimination of the tax on subsidiary capital Exemption of investment capital and investment income and the implementation of limitations on the definitions of each Significant changes to NYS tax credits regime - Investment tax credit modified - Musical and theatrical production credit established - Workers with disabilities tax credit established - Commercial production tax credit extended through 2017 - Youth works tax credit enhanced 42. 2012 McGladrey LLP. All Rights Reserved. 2014 McGladrey LLP. All Rights Reserved. Estate tax The Act aims to bring conformity with the federal estate tax. - While the top rate will remain at 16%, the exemption will be raised to $5.25 million in yearly phases ending April 1, 2017. - The exemption is structured as a tax credit, eliminating tax liabilities for estates under the threshold but levying a full tax on estates more than 105% percent above it. - The Generation-Skipping Tax is also eliminated. - Additionally, the law closes the "residential tax loophole." Effective with respect to income earned on or after June 1, 2014, trust will be treated as grantor trusts if they are structured to avoid federal gift tax on contributions of property to the trust. This provision also applies to New York City income tax. 43. 2012 McGladrey LLP. All Rights Reserved. 2014 McGladrey LLP. All Rights Reserved. New York City Impact New York City has yet to comment on any of these new tax changes. Differences between New York State tax and New York City tax will place compliance burdens on those who conduct business within New York City. 44. 2012 McGladrey LLP. All Rights Reserved. 2014 McGladrey LLP. All Rights Reserved. 2012 McGladrey LLP. All Rights Reserved. 2014 McGladrey LLP. All Rights Reserved. Harlan J. Kwiatek, Partner, New York City, McGladrey LLP New England States Tax Update 45. 2012 McGladrey LLP. All Rights Reserved. 2014 McGladrey LLP. All Rights Reserved. Connecticut Biennial Budget Bill: Key Provisions - Corporate Income Tax Surcharge Extended Extended for an additional two years through the 2014 and 2015 income years. - Rate: Still 20%. - Application is broad, but there are limitations. - Electronic Sales and Use Tax Remittance Pilot Program Applies to periods beginning on or after October 1, 2013 and prior to April 1, 2014. Connecticut can require retailers that are delinquent in paying sales taxes to electronically remit the sales tax due on certain sales. Requirement applies to sales the retailer makes by credit or debit card or electronic transfer during the applicable tax periods. Connecticut notified impacted retailers in writing by October 1, 2013. 44 46. 2012 McGladrey LLP. All Rights Reserved. 2014 McGladrey LLP. All Rights Reserved. Massachusetts Transportation Finance Bill: Key Provisions - Apportionment Methodology Change: Receipts Factor Market-based sourcing. - Applies to receipts generated from sales other than sales of tangible personal property. - Legislation articulates five situations where sales are considered Massachusetts sales. Throw-out provision included. Effective date: January 1, 2014. Allied Domecq Spirits & Wins USA Inc. v. Commr of Revenue - Reverse nexus issue. 45 47. 2012 McGladrey LLP. All Rights Reserved. 2014 McGladrey LLP. All Rights Reserved. Massachusetts MA DOR took the position that cloud computing charges for the use of a providers software by Massachusetts customers are taxable as a sale of prewritten software. Fees for data transfer (but not storage) are taxable as a telecommunication service - MA Letter Rulings:12-13 (9 Nov. 2012), 12-11 (25 Sep. 2012), 12-10(25 Sep. 2012) &12-8 (16 July 2012), and TIR 13-10 But see TIR 13-17 (30 Sep. 2013) concerning MA Leg Act Repealing the Computer and Software Services Tax (relating to computer system design and to modification, integration, enhancement, installation, or configuration of standardized or prewritten software) effective 31 July 2013 48. 2012 McGladrey LLP. All Rights Reserved. 2014 McGladrey LLP. All Rights Reserved. New York State Mangano v. Silver, New York Court of Appeals, 1/14/2014 - Metropolitan Commuter Transportation Mobility Tax held constitutional Infusiondev Corp., New York Division of Tax Appeals, 5/1/2014 - Personal Income tax case - Lack of USPS date postmark doomed refund claim/challenge Crown Security LLC, New York Division of Tax Appeals, 5/1/2014 - Sales tax case - Security company properly assessed sales tax on provision of guard services at construction sites In matter of John Gaied, New York Court of Appeals, 2/18/2014 - Personal income tax case - In order for a taxpayer to "maintain a permanent place of abode' in New York State, within meaning of statutory residence provision imposing personal income tax on individuals who are not domiciled in New York State but who maintain a permanent place of abode in the State and spend more than 183 days of the taxable year in the State, the taxpayer must, himself, have a residential interest in the property, i.e., there must be some basis to conclude that the dwelling was utilized as the taxpayer's residence, and it is not enough that the taxpayer merely maintains the dwelling. 47 49. 2012 McGladrey LLP. All Rights Reserved. 2014 McGladrey LLP. All Rights Reserved. New York State Overstock, LLC v. Department of Taxation and Finance - The New York Court of Appeals held that New Yorks Amazon statute that subjects online retailers without physical presence in New York State to the jurisdictions sales and use tax does not violate the Due Process Clause of the United States Constitution. START-UP New York Program - Designed to help high-tech companies and start-ups stay in New York State. - Tax benefits offered for business located in tax free New York areas and their employees. - Benefits are effective for tax years beginning on or after January 1, 2014, to sales tax quarters beginning on or after March 1, 2014, or to transactions occurring on or after January 1, 2014 (whichever is applicable). - START-UP requires applicants to work with NYS universities 48 50. 2012 McGladrey LLP. All Rights Reserved. 2014 McGladrey LLP. All Rights Reserved. New Jersey Angel Investor Credit - Effective for tax years starting on or after January 1, 2012. - Credit applies against the corporation business and personal income taxes for angel investor investments in New Jersey emerging technology businesses. - Credits equal: 10% of a taxpayers qualified investment in an emerging technology company with fewer than 225 employees, of whom at least 75% are filling a position in New Jersey. Credit is capped at $500,000 per year for each qualified investment. If there is excess: - Personal income: Refunded. - Corporation business: Refunded or carried forward for 15 years. - The emerging technology company must employ or own capital or property, or maintain an office in New Jersey. There are further requirements relating to the nature of the New Jersey company. 49 51. 2012 McGladrey LLP. All Rights Reserved. 2014 McGladrey LLP. All Rights Reserved. Questions? 52. 2012 McGladrey LLP. All Rights Reserved. 2014 McGladrey LLP. All Rights Reserved. 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