S Corp Meets with House Leadership

S Corporation Association Board Member Dan McGregor participated in a small business roundtable with House Republican leadership yesterday as part of our ongoing effort to educate policymakers on the important role pass-through businesses, and particularly S corporations, play in job creation and investment.

Dan is Chairman of McGregor Metal Working, a group of metal-stamping companies located in the Springfield, Ohio area.B Itbs been a family-owned business since 1965 and began as an eight-person tool and die shop.B Today, they employ 365 workers and have clients in the auto, agriculture, and lawn and garden industries.

A key part of Danbs message yesterday was that higher tax rates means lower retained earnings, which means less capital to invest and create jobs.

Ironically, Danbs trip to the Capitol occurred on the same day that FedEx founder Fred Smith argued that itbs a bmythb that McGregor Metalworking and similar pass-through businesses are an important source of jobs:

“The reality is the vast majority of jobs in the United States are produced by capital investment in equipment and software that’s not done by small business. It’s done by big business and the so-called ‘gazelles,’ the emerging companies like the new fracking oil and gas operations. It is capital investment and equipment and software that’s the solution to our economic problems, not the marginal tax rates of individuals.”B

The ignorance of this statement is remarkable, especially given the source.B As readers of our E&Y study know, fifty-four percent of all private sector jobs come from pass-through businesses — one quarter of all private sector jobs are at an S corporations.

Moreover, itbs hard to believe therebs a more capital-intensive industry than metal stamping, and for a private business like McGregor, there are few viable options for raising capital other than retained earnings.

If McGregor wants to grow, it needs to earn a profit and reinvest those profits in the business.B Raising taxes on McGregor — as proposed by the President — would increase McGregorbs effective tax rate sharply, which means less retained earnings and less ability to invest and grow.B As the President is fond of saying, bItbs just math.b

So the President can push for higher taxes on a million or so private businesses, and billionaires like Fred Smith and Warren Buffett can support him, but donbt pretend itbs not going to affect real people and real jobs.B It will.B It already has.

CBO Weighs In

S corporations sure are popular these days. B Unfortunately, theybre popular in the same way that big Tom Turkey is popular around Thanksgiving. B Yesterday, the Congressional Budget Office added to the feeding frenzy, releasing a report entitled bTaxing Businesses Through the Individual Income Tax.b

Therebs actually good stuff in there, like how S corporations help to reduce the cost of business investment and how they reduce the tax codebs bias toward too much debt , but itbs all for naught.B B Those big government types tying on their napkins and sharpening their knives will only see this:

The Congressional Budget Office (CBO) estimates that if the C-corporation tax rules had applied to S corporations and LLCs in 2007 and if there had been no behavioral responses to that difference in tax treatment, federal revenues in that year would have been about $76 billion higher. B

You can hear them drooling already — $76 billion a year will pay for lots of new government. But if there is no change in behavior? B And if therebs no interaction with the AMT? B Thatbs akin to saying, if there was no structural federal deficit, we wouldnbt need all these tax hikes.

Letbs start with the behavior. B For a sense of just how much taxpayer behavior would change if all pass-through businesses were suddenly subject to the double corporate tax, go back to pre-1986 tax reform and see how they behaved. B Tax sheltering ruled the day then, and we expect it would return to prominence again in a double tax world. B Herebs S-Corp Advisor Tom Nicholsb testimony before the Ways and Means Committee earlier this year:

Prior to the TRA b86, successful business owners were regularly engaged in the tax planning process in order to minimize the substantial burdens under the double taxation regime.B Since that time, and with the migration of closely-held business activity to pass-through taxation treatment, business owners are no longer engaged in an ongoing struggle to navigate the heavy impositions of the double tax system.B They are less focused on tax planning than they were before the TRA b86, and more focused on running their business.

The AMT exception is particularly important, too. B Just about every other business owner we know pays the AMT, so pretending it doesnbt play a significant role is less than credible. Moreover, why didnbt the CBO calculate the impact of the AMT? B E&Y did in our study on the impact of higher rates on jobs and investment. B They found that of the 2.1 million business owners with incomes high enough to pay the top two rates, 1.2 million of them already pay the AMT.

If E&Y can make that calculation, why canbt the CBO?

So the take-away for the btax the richb crowd will be that theybre losing $76 billion a year by allowing pass-through businesses. B But that numberbs not real.B Congress will never collect it.

On the other hand, the higher cost of capital is real.B Herebs how E&Y put it:B

The income of C corporations is instead subject to two levels of tax (the bdouble taxb), first when income is earned at the corporate level, and again when the income is paid out to shareholders in the form of dividends or retained and later realized by shareholders as capital gains.

The double tax affects a number of important economic decisions. In particular, the double tax:

  • Increases the cost of capital, which discourages investment and reduces capital formation and economic growth.
  • Increases the cost of equity finance, which encourages greater leverage among C corporations.

The flow-through form provides an important benefit to the economy by reducing the economically harmful effects of the double tax and therefore allowing for a greater opportunity for job creation and capital investment. Moreover, the flow-through form provides businesses with flexibility that may better match their ownership structure requirements and capital needs.B

Bottom Line:B All businesses should be taxed as S corporations, not the other way around. B It would mean more investment, more jobs and higher wages.

Isnbt that the whole point?B B B B

Retained Earnings v. Distributions

Speaking of myths, one of the arguments webve heard from reporters and others in recent days is that because wages are deductible, hiring will not be impacted by higher tax rates.

This argument reflects a basic misunderstanding of how pass-through businesses, including S corporations, are taxed.B S corporation shareholders must pay taxes on any income earned by the business, whether the income is distributed to the shareholders or not.B This is an important feature of S corporation taxation that many observers fail to grasp completely, and itbs critical to understanding the concern that higher marginal rates will result in less job creation.

Herebs an example:

Start with a two-shareholder S corporation where each owner has a 50 percent interest.B If the S corporation makes $200 dollars in a quarter, each shareholder would be required to pay taxes on the $100 in earnings attributed to them, regardless of whether the shareholders actually received any distribution!

Most S corporations make sure to distribute at least enough earnings each quarter to cover the shareholderbs taxes.B In this case, both shareholders are in the 35 percent bracket, so the business would distribute $35 to each to cover their taxes, and retain the remaining $130 as working capital for the business.

Under the Presidentbs approach, next year the marginal rates on our shareholders will rise to 39.6 percent, so the business would need to distribute $40 to both shareholders.B As a result, the businessb working capital is reduced to $120.

But these higher statutory rates are only one of three rate hikes facing pass-through businesses next year.B Therebs also the marginal impact of reinstating the Pease cap on itemized deductions.B That has the effect of raising the marginal rate by 1.2 percent.

And then therebs the imposition of the new 3.8 percent investment surtax enacted as part of health care reform.B That only applies to shareholders who donbt work at the business, but itbs another 3.8 percent on top of the other two tax hikes.

The net result will be to raise the top marginal rate on S corporation shareholders from 35 percent to around 45 percent (not including state and local taxes).B With those rates, our businessb working capital would be reduced from $130 to $110, a reduction of 15 percent!

Interestingly, thatbs just about the same percentage that E&Y estimated the cost of capital would rise for pass-through businesses if the President gets his way on tax rates.B Think of it as a reverse sale — instead of 15 percent off that new equipment, next year itbll be 15 percent more.

And thatbs why higher rates cost jobs.B Higher rates mean lower after-tax earnings and less money to invest in jobs and equipment.B Period.

Health Reform Investment Taxes Will Hit S Corps

The IRS waited until a Friday afternoon after the elections to release 159 pages of proposed regulations on the new 3.8 percent investment tax.B While the rule is not final, the IRS is telling taxpayers to rely on this temporary guidance until they can get around to making them final.B Herebs what the IRS says:

Taxpayers may rely on the proposed regulations for purposes of compliance with section 1411 until the effective date of the final regulations.

Just to remind folks distracted by the fight over extending the Bush tax cuts, two of the new taxes enacted to pay for health care reform will take effect beginning January 1:

  • A 3.8 percent tax on all net investment income for taxpayers earning more than $250,000 ($200,000 if youbre single); and
  • An additional .9 percent Medicare tax on salaries and wages for taxpayers making more than $250,000 ($200,000 if youbre single).

The rule released Friday addresses the investment tax.B Forbes has a nice write up together with some examples of how taxpayers might be impacted.B For S corporations, income from the business is not subject to the new 3.8 percent investment tax if the taxpayer is active in the business and the income is active rather than passive in nature.B Herebs the Forbes example:

Example: Walter White owns an interest in two S corporations. Both corporations are engaged in the active conduct of a trade or business, and neither corporation is a trader in financial instruments. Walter spends 520 hours on S Corporation 1, but only 40 hours on S corporation 2. Under the Section 469 regulations, absent an election to group the two activities, Walter would materially participate in S Corporation 1, but not S Corporation 2.

Assuming the interests in the two corporations represent an appropriate economic unit, Walter may group them together for purposes of testing material participation. Because Walter spends 560 hours on the combined activity, he materially participates in both S corporations and neither activity is passive to Walter. As a result, income earned in the ordinary course of the trade or business of both SB Corporation 1B and SB Corporation 2B will not be considered net investment income.

Webve commented on these new taxes previously, but suffice it to say that this guidance should make clear to policymakers that webre not returning to the 1990s tax rates next month — webre going well beyond.

 

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