Deductible Taxes

General Rules

In order to deduct taxes, they must be imposed on you. The tax must be owed by the party who pays it. If your corporation owns an office building, it is the party that owes the real property taxes. If, as part of your lease, you are obligated to pay your landlord's taxes, you can deduct your payment as an additional part of your rent; you do not claim a deduction for taxes, since you are not the owner of the property.

Taxes must be paid during the year if you are on a cash basis. If you pay taxes at year end by means of a check or even a credit card charge, the tax is deductible in the year the check is sent or delivered or the credit charge is made. This is so even though the check is not cashed until the following year or you do not pay the credit card bill until the following year. If you pay any tax by phone or through your computer, the tax is deductible on the date of payment reported on the statement issued by the financial institution through which the payment is made. If you contest a liability and do not pay it until the issue is settled, you cannot deduct the tax until it is actually paid. It may be advisable to settle a disputed liability in order to fix the amount and claim a deduction. If you pay tax after the end of the year for a liability that relates to the prior year, you deduct the tax in the year of payment.

If you receive a state or local location tax incentive in the form of an abatement, a credit, a deduction, a rate reduction, or an exemption in order to attract your company to a particular area, the incentive is not deductible. Only the amount of tax you are liable for, after reduction by any location tax incentive(s), is deductible.

Real Estate Taxes

In general, real property taxes are deductible. Assessments made to real property for the repair or maintenance of some local benefit (such as streets, sidewalks, or sewers) are treated as deductible taxes.

If you acquire real property for resale to customers, you may be required under uniform capitalization rules to capitalize these taxes. The uniform capitalization rules are discussed in Chapter 2.

Special rules apply when real estate is sold during the year. Real property taxes must be allocated between the buyer and seller according to the number of days in the real property tax year. The seller can deduct the taxes up to, but not including, the date of sale. The buyer can deduct the taxes from the date of sale onward.

Accrual basis taxpayers can deduct only taxes accruing on the date of sale. An accrual basis taxpayer can elect to accrue ratably real property taxes related to a definite period of time over that period of time.

The election to accrue taxes ratably applies for each separate business. If 1 business owns 2 properties, an election covers both properties. The election is binding and can be revoked only with the consent of the IRS. You make the election by attaching a statement to your return for the first year that real property taxes are due on property that includes the businesses for which the election is being made, the period of time to which the taxes relate, and a computation of the real property tax deduction for the first year of the election. The election must be filed on time with your income tax return (including extensions).

If you have already owned property for some time but want to switch to the ratable accrual method, you must obtain the consent of the IRS. To do so, file Form 3115, Change in Accounting Method, within the year for which the change is to be effective.

State and Local Income Taxes

A corporation that pays state and local income taxes can deduct the taxes on its return. Taxes may include state corporate income taxes and any franchise tax (which is a tax for operating as a corporation and has nothing to do with being a franchise business).

A self-employed individual who pays state and local taxes with respect to business income reported on Schedule C can deduct them only as an itemized deduction on Schedule A. Similarly, an employee who pays state and local taxes with respect to compensation from employment usually deducts these taxes on Schedule A.

Self-Employment Tax

Businesses do not pay self-employment tax; individuals do. Sole proprietors, general partners (whether active or inactive), and certain LLC members pay self-employment tax on their net earnings from self-employment (amounts reported on Schedule C or as self-employment income on Schedule K-1). Limited partners do not pay self-employment tax on their share of income from the business. However, limited partners are subject to self-employment tax if they perform any services for the business or receive any guaranteed payments. LLC members who are like general partners pay self-employment tax; those who are like limited partners do not. The IRS was precluded from issuing regulations defining a limited partner before July 1,1998. To date, the IRS has still not issued any regulations nor given any indication when it would.

The tax rate for the Social Security portion of self-employment tax is 10.4% and, in 2012, applies to net earnings from self-employment up to $110,100. The Medicare tax rate is 2.9% and it applies to all net earnings from self-employment (there is no limit for the Medicare portion of self-employment tax).

Those who pay self-employment tax are entitled to deduct the employer equivalent parties. For the deduction in 2012 if the self-employment tax is more than $14,643.30, simply multiply it by 50%. If the tax is $14,643.30 or less, multiply it by 57.51% to find the deduction amount of the tax as an adjustment to gross income on their personal income tax returns. The deduction on page 1 of Form 1040 reduces your gross income and serves to lower the threshold for certain itemized deductions.

In figuring self-employment tax, net earnings from self-employment cannot be reduced by any net operating loss carryback or carryover.

While S corporations are pass-through entities similar to partnerships and LLCs, owners of S corporations who work for their businesses are not treated the same as partners and LLC members for purposes of self-employment tax. Owners of S corporations who are also employees of their businesses do not pay self-employment tax on their compensation—they are employees of the corporation for purposes of employment tax. Their compensation is subject to FICA, not to self-employment tax. Individuals who both are self-employed and have an interest in an S corporation cannot use losses from the S corporation to reduce net earnings from self-employment.

For more on self-employment tax, see Chapter 29.

Personal Property Tax

Personal property tax on any property used in a business is deductible. Personal property tax is an ad valorem tax—a tax on the value of personal property. For example, a floor tax is a property tax levied on inventory that is sitting on the floor (or shelves) of your business. Registration fees for the right to use property within the state in your trade or business are deductible. If the fees are based on the value of the property they are considered a personal property tax.

Sales and Use Taxes

Sales tax to acquire a depreciable asset used in a trade or business is added to the basis of the asset and is recovered through depreciation. If sales tax is paid to acquire a nondepreciable asset, it is still treated as part of the cost of the asset and is deducted as part of the asset's expense. For example, sales tax on business stationery is part of the cost of the stationery and is deducted as part of that cost (not as a separate sales tax deduction). Sales tax paid on property acquired for resale is also treated as part of the cost of that property.

Sales tax you collect as a merchant or other business owner and turn over to the state is deductible only if you include it in your gross receipts. If the sales tax is not included, it is not deductible.

When sales tax is imposed on the seller or retailer and the seller or retailer can separately state the tax or pass it on to the consumer, then the consumer, rather than the seller or retailer, gets to deduct the tax. When the consumer is in business the tax is treated differently depending on how the asset is acquired. (See the aforementioned details for depreciable property, nondepreciable property, and property held for sale or resale.)

A compensating use tax is treated as a sales tax. This type of tax is imposed on the use, storage, or consumption of an item brought in from another taxing jurisdiction. Typically, it is imposed at the same percentage as a sale tax.

To learn about obtaining a resale number needed for the collection of sales taxes and your sales tax obligations, contact your state tax department (you can find it at www.taxadmin.org).

Luxury Tax

Like sales tax, a luxury tax that is paid to acquire a depreciable asset is added to the basis of the asset; it is not separately deductible. For example, if you pay a luxury tax to acquire a high-priced car to use for business, the amount of the tax becomes part of the car's basis for purposes of depreciation.

Employment Taxes

Employment taxes, also called payroll taxes, are a conglomerate of a number of different taxes:

• The employer share of Federal Insurance Contribution Act (FICA) tax covering Social Security and Medicare taxes
• Federal Unemployment Tax Act (FUTA) tax
• State unemployment tax

Employment taxes are fully deductible by an employer.

The employer portion of the Social Security tax is 6.2%. While the employee share of the Social Security tax in 2012 is reduced to 4.2%, the employer share remains at 6.2%. This tax is applied to a current wage base of up to $110,100 in 2012, which is adjusted annually for inflation. The employer portion of the Medicare tax is 1.45%. This is applied to all wages paid to an employee; there is no wage base limit. If you, as an employer, pay both the employer and employee portion of the tax, you may claim a deduction for your full payments.

If you are in a dispute over employment taxes with the IRS and you lose, requiring you to pay back taxes and you pay the employee share to avoid adverse employee reaction, you may deduct the employee share as well. The IRS views your payment in this instance as having a valid business reason even though you are not legally obligated to pay the employee share of FICA.

You may also be liable for federal unemployment tax (FUTA) for your employees. The gross federal unemployment tax rate is 6%. This is applied to employee wages up to $7,000, for a maximum FUTA tax of $434 per employee. However, you may claim a credit of up to 5.4% for state unemployment tax that you pay, bringing the maximum FUTA tax to $56 per employee. If your state unemployment tax rate is 5.4% or more, then the net FUTA rate is 0.6%. Even if your state unemployment rate is less than 5.4%, you are permitted to claim a full reduction of 5.4%.

However, if your state has failed to repay funds borrowed from the federal government to cover state unemployment tax benefits, the federal credit for FUTA is reduced. For 2011, employers in 20 states were subject to FUTA tax increases. When the Department of Labor named the “credit reduction states.” Employers in these states (see Table 13.1) had a reduced credit for state unemployment taxes. Affected employers paid an additional FUTA amount as indicated in Table 13.1. The 0.3% additional FUTA amount translates into $21 per employee earning $7,000 or more. The FUTA tax is fully deductible; it is expected that a greater number of states will be “credit reduction states” in 2012.

Table 13.1 Credit Reduction States for 2011 FUTA

The credit reduction states for 2012 FUTA will be listed in the Supplement to this book.

These tax payments are deductible by you as an employer. A complete discussion of employment taxes can be found in Chapter 29.

State Benefit Funds

An employer who pays into a state disability or unemployment insurance fund may deduct the payments as taxes. An employee who must contribute to the following state benefit funds can deduct the payments as state income taxes on Schedule A:

• Alaska—State Unemployment Fund
• California—Nonoccupational Disability Benefit Fund
• New Jersey—Nonoccupational Disability Benefit Fund and State Unemployment Fund
• New York—Nonoccupational Disability Benefit Fund
• Pennsylvania—State Unemployment Fund
• Rhode Island—Temporary Disability Benefit Fund
• Washington—Supplemental Workmen's Compensation Trust Fund

The deduction for these taxes is not subject to a 2%-of-adjusted-gross-income floor (see Chapter 1), as is the case with other employee business expenses.

Franchise Taxes

Corporate franchise taxes (which is another term that may be used for state corporate income taxes and has nothing to do with whether the corporation is a franchise) are a deductible business expense. Your state may or may not impose franchise taxes on S corporations, so check with your state corporate tax department.

Excise Taxes

Excise taxes paid or incurred in a trade or business are deductible as operating expenses. For example, indoor tanning salons can deduct the 10% excise tax that they pay on their services. A credit for federal excise tax on certain fuels may be claimed as explained in the following section.

Fuel Taxes

Taxes on gas, diesel fuel, and other motor fuels used in your business are deductible. As a practical matter, they are included in the cost of the fuel and are not separately stated. Thus, they are deducted as a fuel cost rather than as a tax.

However, in certain instances, you may be eligible for a credit for the federal excise tax on certain fuels. The credit applies to fuel used in machinery and off-highway vehicles (such as tractors), and kerosene used for heating, lighting, and cooking on a farm.

You have a choice: claim a tax credit for the federal excise tax or claim a refund of this tax. You can claim a quarterly refund for the first 3 quarters of the year if the refund is $750 or more. If you do not exceed $750 in a quarter, then you can carry over this refund amount to the following quarter and add it to the refund due at that time. But if, after carrying the refund forward to the fourth quarter you do not exceed $750, then you must recoup the excise tax through a tax credit.

Alternatively, if you have pesticides or fertilizers applied aerially, you may waive your right to the credit or refund, allowing the applicator to claim it (something that would reduce your application charges). If you want to waive the credit or refund, you must sign an irrevocable waiver and give a copy of it to the applicator. For further information on this credit, see Chapter 29 and IRS Publication 510, Excise Taxes.

Foreign Taxes

Income taxes paid to a foreign country or U.S. possession may be claimed as a deduction or a tax credit. To claim foreign income taxes as a tax credit, you must file Form 1116, Foreign Tax Credit (unless as an individual you have foreign tax of $300 or less, or $600 or less on a joint return). Corporations claim the foreign tax credit on Form 1118. The same rules apply for foreign real property taxes paid with respect to real property owned in a foreign country or U.S. possession.

Built-In Gains Tax

If an S corporation pays a built-in gains tax on the sale of certain property, the tax it pays is deductible. If the tax is attributable to ordinary gain, then it is deductible as a tax (on page 1 of Form 1120S). If it is attributable to short-term or long-term capital gain, then it is claimed as a short-term or long-term capital loss on Schedule D of Form 1120S.

Other Rules

If a corporation pays a tax imposed on a shareholder and the shareholder does not reimburse the corporation, then the corporation, and not the shareholder, is entitled to claim the deduction for the payment of the tax.