Business Entities as Parties to Real Estate Transactions: Who Has Authority?

Business entities buy and sell real estate on a regular basis. A successful transaction hinges, in part, on the proper parties executing the requisite documents. Because failing to correctly identify the parties and obtain proper signatures can be fatal to any real estate transaction, understanding who has authority to sign, on behalf of the entity, is imperative.

Four types of business entities are commonly involved in real estate transactions: (1) general partnerships; (2) limited partnerships; (3) limited liability companies; and (4) corporations.

A general partnership is an association of two or more persons to carry on as co-owners a business for profit. Formation of a partnership does not require a filing with the State, nor does it require a partnership agreement. As such, any conveyancing documents must clearly identify whether partnership property, versus non-partnership property, is being sold. In general, all partners should sign the conveyancing document to sell partnership property. However, a Statement of Authority may be voluntarily filed with the Secretary of State, granting specific partner(s) express authority to solely dispose of partnership property. Unlike the general partnership, a limited partnership (“LP”) is registered with the Secretary of State and is comprised of one or more general partners and one or more limited partners. Like the general partnership, a limited partnership may be governed by a partnership agreement. To convey real property, a deed must be executed by all general partners, unless a duly executed and authorized partnership agreement or Statement of Authority provides otherwise.

A limited liability company (“LLC”) is either member-managed or manager-managed and is created by filing a Certificate of Organization with the Secretary of State. The entity is governed by an operating agreement, which is not filed. Unless the operating agreement dictates otherwise, consent is typically required by all managers (if manager-managed) or members (if member-managed) to transfer real property outside the ordinary course of business. A duly executed and authorized Statement of Authority can be filed with the Secretary of State to supersede the signing authority as designated in the operating agreement. As such, be sure to confirm that the Statement of Authority is executed by all members or managers, depending on the LLC management structure.

A corporation is a legal entity that is owned by shareholders and operated by the Board of Directors. Articles of Incorporation must be filed with the Secretary of State to create a corporation. The corporation’s affairs are governed by its bylaws. If the corporate president does not have authority to transfer real estate, corporate disposition of property is generally a two-step process. The Board of Directors, as dictated by the bylaws, must consent to the transaction, and upon consent, the Board must pass a resolution that authorizes the transaction and designates the authorized signatory.

Early review of the relevant entity documents is key, if not crucial, to ensuring the proper parties are named and have executing authority in any real estate transaction. This simple, but fundamental, step can certainly facilitate not only a timely and efficient real estate closing, but also a successful transaction.

© 2018 Vandenack Weaver LLC
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End of the Year Tax Planning Considerations: New Issues Arise from Tax Legislation

            With the passage of new tax legislation by Congress, the usual gamut of year-end tax considerations has been made more complicated this year.  The timing of this legislation leaves US taxpayers with little time to determine what actions need to be taken this year to give them favorable consideration in 2017 and beyond.  Vandenack Weaver LLC has assembled the most important changes here for your consideration.  We encourage you to discuss these issues with your tax professionals.

  • 2018 Real Estate Taxes – The new tax legislation limits the deductibility of state income tax, real estate taxes, or sales tax to $10,000. With this new limit, some clients may find it advantageous to pay all but $10,000 of their 2018 real estate taxes in 2017.  If you are paying taxes into an escrow account, you are eligible to take the deduction in the year when the bank pays the property taxes, not when you pay the bank.  As such, consult with your bank to determine if you may take advantage of this.  Note, for those clients who are subject to the Alternative Minimum Tax (AMT) in 2017, paying early is inapplicable as these taxes are not deductible when computing AMT in 2017.

 

  • Gifts – Gift and generation skipping transfer tax exemptions will double under the new tax legislation. For those making large gifts, consider waiting until the new year in order to avoid 2017 tax consequences.  However, remember to make your annual gifts before the end of the year.  These limits will increase from $14,000 to $15,000 in 2018, but if you do not make a transfer in a calendar year, you will not get the exemption for that calendar year.

 

  • Payment Timing for Estimated State Income Taxes – Traditionally, state and local income taxes have been deductible provided that such tax payments were based on a reasonable estimate of the taxpayer’s actual liability (and that the state has authorized the tax payment). This was available even if you received a refund after the end of the year for which payments were made.  The new tax legislation curtails this practice.  For example, an amount paid in 2017 for taxes that are imposed in 2018 or later will be treated as though it was paid at the end of 2018.  This is particularly important for individuals who are under audit or who have outstanding liabilities for 2017 and earlier.  In 2018, deductions for payments of taxes attributable to prior years will be severely reduced.  Consider settling these issues prior to 2018.

  • Moving Expenses – Under the new tax legislation expenses for a work-related move will be eliminated (except for those in the military). While it is highly unlikely anyone who hasn’t planned to or already moved will be able to take advantage of this, it is important to take this change into consideration for your future plans.

  • Impact to Charitable Gifts – Although the new tax legislation did not make many changes to deductions for charitable gifts, other changes in the legislation will impact how far charitable gifts go in reducing your taxes. Because the tax brackets are shifting downward, many taxpayers will find themselves requiring fewer deductions in 2018. Thus, making a charitable deduction in 2017 could have a greater impact on your taxes than in 2018.  There are many factors that can impact the deductibility of your charitable contributions, so it is highly advised that you speak to a tax consultant before making any decisions.  It should also be noted that because of the overall decrease in itemized deductions and the increase of the standard deduction, some taxpayers will find it more advantageous to take the standard deduction in the new year.  If you are taking the standard deduction, then you will not be able to deduct your charitable contributions.  One change that was made to the deductibility of charitable gifts is in the ability to deduct 80 percent of an amount donated to a university in order to acquire the right to purchase tickets to the university’s sporting events.  That deduction will no longer be available after December 31. If you expect to make any such donations, you should consider doing so before the end of the year to take advantage of this expiring deduction.

  • Miscellaneous Itemized Deductions – If you do visit a tax consultant to discuss these issues, be sure to consider paying for those services in 2017! The new tax legislation eliminates the deductibility of tax preparation fees as well as other miscellaneous itemized deductions.  Some of these include appraisal fees for charitable gifts of property, investment advisory advice, and safety deposit box fees.  Clients should look at paying any of those expenses that are coming up in 2018 now to get the deduction before it is gone.

  • Unreimbursed Employee Expenses – Expenses that are attributable to an employee’s work and that have not been reimbursed are deductible in 2017. However, the new tax legislation will be eliminating this deduction.  As with miscellaneous itemized deductions, clients should look to move any of these expenses that they were planning to incur in 2018 to the current year.  Such expenses may include tools, uniforms, work-related education, even unpaid mileage and gas if the trip was work related.  Business owners are still able to deduct business expenses on Schedule C under the new legislation.

  • Mortgages – Current tax law allows for a deduction of the interest paid on up to $100,000 (for married couples) of home equity debt on a personal residence. This interest will no longer be deductible with the new tax legislation. Interest on mortgages for the acquisition of a principal residence will remain deductible, but the debt cap of $1,000,000 (for married couples) will be lowered to $750,000.  However, those who have purchased a home before December 15, 2017, will still be able to use the higher cap.  These changes may impact your decision in purchasing a home as it effectively increases the cost of the loan.  In addition, this is also one of the main reasons why many clients may consider taking the standard deduction in the future as the deduction for mortgage interest can make up a significant portion of your itemized deductions.

  • 8% Surtax – While the new tax legislation does not change the present 3.8% surtax on net investment income, some other changes may cause your taxable net investment income to rise in 2018. First, as noted earlier, the deduction for investment-related expenses will no longer be available.  In addition, state income taxes that could previously be deducted (to the extent they were connected to net investment income) are now capped at the $10,000 limit.  Clients should consider making any of these payments they can in 2017 in order to take advantage of these deductions.

  • Roth IRAs – The new tax legislation changes an existing rule regarding Roth IRAs. Presently, if you convert a traditional IRA to a Roth IRA, you may undo the conversion by recharacterizing it within specified time frames.  The new legislation removes the ability to recharacterize a Roth IRA.  In addition, there is legislative ambiguity as to what Roth IRAs may be impacted by this.  If you have converted an IRA in 2017 and are considering recharacterizing the subsequent Roth IRA, it is advisable you complete the recharacterization in 2017 to avoid any ambiguity in the law.

  • Capital Gains – Taxes on capital gains do not change significantly with the new tax legislation. However, there are some hidden issues to consider.  Because income tax rates and tax brackets are changing significantly, accelerating or deferring your capital gains may create a positive impact (or avoid a negative one).  Specifically, one of the major issues to consider is whether your taxable income will increase because of these changes that could bump your capital gains tax rate to a higher amount (from 15% to 20% for taxable income over $479,000).  One caveat to this issue is that it is highly dependent on other factors such as where you live.  Given the short amount of time left in the year it may not be possible to take advantage of these changes.

  • Pass-Through Business Limits – With the reduction of the corporate tax in the new tax bill, a corresponding change is made to the taxation of pass-through businesses (which do not pay the corporate tax) in order to keep them competitive. Those participating in a pass-through business will be able to deduct 20% of their allocable share of business income.  There are some limits to this, primarily if you earn more than $157,500 if single or $315,000 if married.  In addition, if you are in certain professional jobs such as accountants, doctors, or lawyers, the deduction will not apply unless you make under certain specified limits.  Still, small businesses may want to consider reorganizing in order to take advantage of these new tax savings.

  • Recently Purchased Business Equipment – One of the new provisions allows for the full and immediate expensing of qualifying capital investments (as opposed to gradual deductions). In addition, the provision will be applicable in the 2017 tax year for purchases made after September 27, 2017.  Businesses should speak to their tax professionals to consider if this applies to them or if they should purchase new equipment before the new year to include it on their 2017 return.

 

  • Limits of the Bill – One final point to note is that many of these changes will terminate in 2025 or earlier, at which time the tax code will revert to the old rules.  Therefore, consultation with a tax professional is encouraged to ensure that you will be receiving the best tax treatment now and in the future

 

© 2017 Vandenack Weaver LLC

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SSA Updates Social Security Taxable Wage Base for 2018

By Joshua A. Diveley

In October, the Social Security Administration (SSA) announced an adjustment to the Social Security taxable wage base to take effect in January based on an increase in average wages. Based on the wage data Social Security had as of October 13, 2017, the Social Security taxable wage base was set to increase to $128,700 in 2018, from $127,200 in 2017. Based on newly released data obtained by SSA, the new Social Security taxable wage base for 2018 is $128,400.

This lower taxable amount is due to corrected W2s provided to Social Security in late October 2017 by a national payroll service provider. Approximately 500,000 corrections for W2s from 2016 were received by SSA and resulted in the downward adjustment for 2018.

For more information about the updated 2018 taxable maximum amount, please visit www.socialsecurity.gov/oact/COLA/cbb.html

 

© 2017 Vandenack Weaver LLC
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Age Discrimination Complaints Must Be Specific

Discrimination Protection: The Age Discrimination in Employment Act forbids age discrimination against employees who are age 40 or older. Discrimination based on age involves treatment by an employer when an employee is treated less favorably because of his or her age. Age discrimination can include any aspect of employment including hiring, firing, pay, job assignments, promotions, layoff, training, benefits, and any other term or condition of employment.

Employment Policies. An employer’s policy can be discriminatory even when it applies to employees of all ages if it has a negative impact on individuals who are age 40 or older and there is no basis in a reasonable factor other than age.
Trends in Legal Practice. Following a lawsuit in Chicago earlier this year where an adjunct professor was not hired because of her age (66), the Equal Employment Opportunity Commission (“EEOC”) has proposed a regulation to remove birth and graduation dates from job applications. While the status of this regulation is currently unclear it is important for employers and employees to understand their rights. The standard under Nebraska law to establish a claim of intentional age discrimination allows a plaintiff to either present direct evidence of such discrimination or prove his or her claim through circumstantial evidence using the familiar McDonnell Douglas burden-shifting framework. An employee must then prove a causal connection between the alleged discriminatory actions and the resulting negative impact suffered. This action must be based on a specific business practice or particular policy and cannot be sustained by a mere allegation of multiple scenarios which could be determined to be age discrimination. Additionally, age cannot be a pretext when an employer is able to prove other reasons for their negative actions.

Nebraska does allow age to factor into an employer’s decision or policy when the requirements of the job would reasonably require an individual of a certain age.

© 2017 Vandenack Weaver LLC
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Court Ruling Sheds Light on Estate’s Ability to Access Digital Information

By Monte Schatz

The Supreme Judicial Court of Massachusetts issued a ruling on October 16, 2017 that empowers administrators of estates to access digital content of deceased persons.

Federal statutes 18 U.S.C. §§ 2701 through 2712 titled The Stored Communications Act created privacy rights to protect the contents of certain electronic communications and files from disclosure by certain online service providers. If the Act applies, the online user account service provider is prohibited from disclosing the contents/files to the estate or trust representatives and family members unless there is an exception under the Act. The result of this legislation was that many digital communications and accounts of a deceased person were inaccessible

The Stored Communications Act provides for certain exceptions in § 2703 (b). One of the exception states that, “[A] provider may divulge the contents of a communication… with the lawful consent of the originator or an addressee or intended recipient of such communication.” The language of this exception did not clarify if the recipient could include a fiduciary of a trust or estate.

In Ajemian v. Yahoo, 478 Mass. 169 (2017) the administrator and siblings of a deceased brother’s estate sought to gain access to information from the son’s Yahoo email account. In that capacity, they sought access to the contents of the e-mail account. While providing certain descriptive information, Yahoo declined to provide access to the account, claiming that it was prohibited from doing so by certain requirements of the Stored Communications Act (SCA), 18 U.S.C. §§ 2701 et seq. The Supreme Judicial Court of Massachusetts stated in its decision that, “Nothing in this definition would suggest that lawful consent precludes consent by a personal representative on a decedent’s behalf. Indeed, personal representatives provide consent lawfully on a decedent’s behalf in a variety of circumstances under both Federal and common law.” The court relied on Massachusetts’ provisions in the Revised Uniform Fiduciary Access to Digital Act that has been adopted in 36 states including Nebraska and Iowa. This legislation provides a clear state law procedure for fiduciaries to follow to request access to or disclosure of online account contents and other digital assets.

Though the Massachusetts state court ruling isn’t binding on other states, this case will provide valuable precedent and guidance in interpreting and applying a standard that allows estate administrators to gain access to digital information of a deceased that previously was prohibited under strict interpretation of federal law by certain digital service providers.

© 2017 Vandenack Weaver LLC
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IRS Issues Guidance on Health Care Reporting Requirements for 2017

by Joshua A. Diveley

The IRS issued guidance October 17, 2017, indicating Forms 1040 for the 2017 tax year will not be accepted if the taxpayer does not report on the health coverage reporting requirements of the Affordable Care Act (ACA). For prior tax years, returns that did not report required ACA information were delayed for processing, but it did not prevent the return from ultimately being processed and any applicable refund from being issued.

In general, the ACA requires taxpayers to obtain minimum essential health insurance coverage for themselves and any dependents. If sufficient coverage is not obtained, the ACA imposes a penalty. Form 1040 directs taxpayers to report the existence or non-existence of essential coverage or whether an exemption from coverage applies.

The IRS guidance is available at: https://www.irs.gov/tax-professionals/aca-information-center-for-tax-professionals.

© 2017 Vandenack Weaver LLC
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IRS Notice Provides Penalty Relief to Certain Partnership Return Filing Taxpayers

by Monte L. Schatz

The IRS has issued Notice 2017-47 that provides penalty relief to partnerships that filed certain untimely returns or untimely requests for extension of time who filed those returns for the first taxable year that began after December 31, 2015.

Section 2006 of the Surface Transportation and Veterans Health Care Choice Improvement Act of 2015 (the Surface Transportation Act), Public Law 114–41, 129 Stat. 443 (2015), amended section 6072 of the Internal Revenue Code (the Code) and changed the date by which a partnership must file its annual return. The due date for filing the annual return of a partnership changed from the fifteenth day of the fourth month following the close of the taxable year (April 15 for calendar-year -2- taxpayers) to the fifteenth day of the third month following the close of the taxable year (March 15 for calendar-year taxpayers). The new due date applies to the returns of partnerships for taxable years beginning after December 31, 2015.

Many partnerships failed to timely file their various partnership returns (1065, 1065-B, 8804, 8805 or 7004 Extension requests for any of the other various partnership returns).  The assumption of these taxpayers was that the normal deadlines for their 2016 Partnership returns applied (namely April 18, 2017 for the actual returns and September 15, 2017 for those that filed the Form 7004 extension for any of these returns).    Normally in these circumstances the taxpayer is subject to late filing penalties; however, the new filing deadlines shortening the return filing period by one month resulted in many taxpayers filing late returns and the IRS has provided relief for those late filed returns.

The IRS in Notice 2017-47 has announced relief will be granted automatically for penalties for failure to timely file Forms 1065, 1065-B, 8804, 8805, and any other returns, such as Form 5471, for which the due date is tied to the due date of Form 1065 or Form 1065-B. Partnerships that qualify for relief and have already been assessed penalties can expect to receive a letter within the next several months notifying them that the penalties have been abated.  For reconsideration of a penalty covered by this notice that has not been abated by February 28, 2018, contact the number listed in the letter that notified you of the penalty or call (800) 829-1040 and state that you are entitled to relief under Notice 2017-47.

SOURCE: IRS Guidewire Issue Number N-2017-47

© 2017 Vandenack Weaver LLC
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