Friday, February 12, 2016
Law firm operating as a C Corporation hit with non-deductible salaries and dividend treatment and penalties when zeroing out income to its shareholders as salary bonus.
Law firm operating as a C Corporation hit with non-deductible salaries and dividend treatment and penalties when zeroing out income to its shareholders as salary bonus. In, Brinks Gilson & Lione PC, TC Memo 2016-20TC Memo 2016-20, the U.S. Tax Court upheld the IRS's imposition of underpayments resulting from the law firm's mischaracterization of dividends paid to its shareholder-attorneys as deductible compensation for services and also imposed accuracy-related penalties against the firm for the mischaracterization. The Tax Court held that the firm lacked substantial authority for its position and failed to establish reasonable cause for the underpayments. I.R.C. Sec. 6662 imposes an accuracy-related penalty if any part of an underpayment of tax required to be shown on a return is due to negligence or disregard of rules or regulations, or a substantial understatement of tax. An "understatement" pursuant to I.R.C. Sec. 6662(d)(2)(A) is defined as the excess of the tax required to be shown on the return over the amount shown on the return as filed. In the case of a corporation, an understatement is substantial if, it exceeds 10% of the tax required to be shown. The penalty is reduced or eliminated if the taxpayer had substantial authority for the position. I.R.C. Sec. 6662(d)(2)(B)(i). Also, pursuant to I.R.C. Sec. 6664(c)(1), no penalty is imposed pursuant to I.R.C. Sec. 6662 with respect to any portion of an underpayment if it is shown that there was reasonable cause for the underpayment and the taxpayer acted in good faith. In the Brinks case, the law firm had about 85 non-shareholder attorneys, and about 65 shareholder attorneys. The law firm filed its returns showing all amounts paid to the shareholder-attorneys as deductible employee compensation. After negotiations, the parties conceded the tax but left the penalty issue for the court to resolve. The firm argued that it had substantial authority for deducting the money it paid to its shareholder-attorneys; and it relied on a reputable accounting firm to prepare its returns for the years in issue, and had reasonable cause to deduct those amounts and acted in good faith in doing so. But the Court held that the amounts paid to the shareholder-attorneys do not qualify as deductible compensation to the extent that the payments are funded by earnings attributable to the services of nonshareholder employees or by the use of the corporation's intangible assets or other capital. Those earnings constitute nondeductible dividends. Pediatric Surgical Associates v. Comm., T.C. Memo 2001-81 (TCM 2001) and Mulcahy, Pauritsch, Salvador & Co v. C.I.R., 680 F.3d 867 (7th Cir. 2012). Therefore, the penalty was upheld. A corporation's payment of salaries to shareholder-employees in amounts that leave insufficient funds available to provide an adequate return to the shareholders on their invested capital indicates that a portion of the "salaries" is properly characterized as distributions of earnings and thus - dividends. The court ruled that investors in such a situation would expect a return on their investment. Finally, the Tax Court ruled that the law firm did not act with reasonable cause and good faith. The law firm did not provide the accounting firm with accurate information. Conclusion: When operating as a C Corporation, a client must be diligent with their accountants to avoid the imposition of penalties.