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VSCPA Expresses Concerns Over Section 413 of the American Jobs and Closing Tax Loopholes

June 14, 2010 

On behalf of the more than 9,000 members of the Virginia Society of CPAs (VSCPA), we are writing to express our concerns about certain aspects of Section 413 of the “American Jobs and Closing Tax Loopholes Act of 2010” (the 2010 Act) and we hope you will consider the following comments as the Senate constructs and finalizes its version of this important legislation. 

 

First and foremost, the VSCPA believes that the Internal Revenue Service (IRS) currently has the appropriate enforcement tools it needs to re-characterize the distributions of S corporations as salary subject to employment taxes under FICA. We also believe that the IRS can and should expand such enforcement tools by providing taxpayers with stronger guidance on determining a reasonable fair market value of compensation. Doing so would reduce litigation, increase compliance and allow employment taxes to continue to be levied only on the performance of personal services as intended. 

 

The change in the law proposed by the House represents a major change in policy that should have been the subject of public hearings. This proposal not only threatens to result in a significant increase in taxes and complexity for S corporations and their shareholders, and for certain limited partners, but it continues the definitional blurring between capital and labor begun in the general partnership arena by further expanding laws that were clearly established to tax-only labor. We are also concerned that the proposal may reduce Social Security benefits for certain retirees. This proposal taxes the returns on the invested capital of owners as described more below. The policy to continue using the Self-Employment Contributions Act (SECA) to blur this capital-labor line should demand scrutiny from within Congress to examine whether this is really the right policy to maintain, or even expand.

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Notwithstanding the foregoing serious concerns, including an unintended reduction of Social Security benefits for certain retirees, we appreciate that the proposal, as written, was limited to a subset of personal service businesses where perceived abuse may have been present. If the current law must go forward, we respectfully suggest the following amendments and clarifications:

 

• Consider the impact of expanding Section 211 of the Social Security Act on the amount of Social Security benefits to be received by an individual and also on the amount of the reduction of the Social Security benefit for an early retiree. Other sections of the Social Security Act may need to be modified to exclude this provision from the definition of earned income for purposes of collecting Social Security benefits and also for the amount of Social Security benefit for an eligible Social Security recipient. As written, the proposal may have the effect of a loss of Social Security benefits for an early retiree solely because they are deemed to have additional self-employment income through the proposal’s family attribution rules by virtue of sharing ownership of stock in an S corporation. 
• Substantial services as used throughout Section 413 should be defined as 75 percent or more of a full-time employee shareholder’s total services (at least 1,560 hours out of 2,080 hours a year) are contributed to the professional service business. See Treas. Reg. § 1.414(r)-11(b)(2) for the precedent where Treasury has defined a substantial service employ as one who provides at least 75 percent of his or her time to a particular line of business.
• Substantially all as used within the definition of “Disqualified S Corporation” should be defined as at least 90 percent of the S corporation’s activities being performed in connection with the partnership.
• Allow a SECA/FICA-free return on human and non-human capital which is an essential component of every business and which does not represent earnings from the labor of the owner, but of the invested capital of the owner. As a starting point, we believe the carried interest proposal of Section 412 of the 2010 Act [proposed Internal Revenue Code section 710(g)(1) and (7)] takes a similar approach and could be easily mirrored by simply excluding a percentage of the distributable net income.

Human capital is often the largest expenditure of any business and therefore significant earnings are often generated by non-owner employees that should not subject owners to FICA or SECA. A flat percentage return on capital (ROC) should be built-in to Section 413 of the 2010 Act such that FICA will apply to salaries and SECA (or FICA) will apply to the balance of the pro rata share of distributable net income to shareholders to which this section applies (rather than 100 percent). Such ROC percentage provides a fair, bright line for S corporation shareholders and limited partners (and even for general partners and limited liability members) of professional service businesses. Every professional service business with more than one non-shareholder employee invests in human capital that generates income for the owners and should not be subjected to employment taxes of any kind since the income was generated by the efforts of non-owner employees. While some taxpayers would pay more and others less under such an approach, calculating a return on capital based on a percentage of net income is good policy because it provides for a simple-to-administer, bright-line test that stays true to the spirit of employment and self-employment taxation and to the entrepreneurial spirit of funding and operating a successful business with the expectation of a return.

 

We are happy to work with you to discuss other areas of this proposal that might concern you, including other complex definitional matters. Thank you very much for taking time to consider our serious concerns and suggestions regarding Section 413 of this Act. If we can be of assistance, please contact me or VSCPA Government Affairs Director Emily Walker at (804) 612-9428 or ewalker@vscpa.com.

 

Sincerely,
Bradford R. Jones, CPA

Chair, Virginia Society of CPAs

cc:       

Senator Mark Warner

Senator Jim Webb

Congressman Eric Cantor

Members of the Senate Finance Committee

Members of the House Ways & Means Committee

American Institute of CPAs