By Howard Epstein, CPA Director
Canada and the United States have signed a tax information sharing agreement, months ahead of implementation of a new U.S. law to help the IRS crack down on offshore tax avoidance.
The so called intergovernmental agreement (IGA) was made in an effort to address Canadian government concerns about the reach of Washington’s Foreign Account Tax Compliance Act (FATCA) that will go into effect in July 2014.
FATCA would have forced Canadian banks to provide the IRS information on accounts held mainly by U.S. citizens and residents with accounts in excess of $50,000. Additionally, it would have automatically imposed a 30% U.S. withholding tax on non-compliant foreign businesses. To date Washington has signed 21 other agreements with other individual countries, including Hungary this month and Italy and Mauritius in December.
Under the terms of the IGA, Canadian tax authorities will be allowed to collect information from the country’s banks and share it with the IRS under an existing bilateral tax treaty. Government officials indicated that the IGA narrows the scope of information required to be collected from account holders in Canada. Some smaller financial institutions will be exempt as well as certain registered savings vehicles such as Canadian Registered Retirement Savings Plans.
Recent estimates show that about 1 million U.S. citizens reside in Canada and many may be affected by the new agreement. Canadian banks will start collecting information in July of this year and the Canada Revenue Service will begin reporting to the IRS in 2015.
FATCA provisions were originally scheduled to take effect on Jan. 1, 2013. In 2011, the start-date was postponed to Jan. 1, 2014 and then in the middle of last year the start date was pushed back again to July 1, 2014. In the meantime, the U.S. Treasury and IRS are rushing to finish FATCA rules and associated forms that financial institutions need to avoid the law’s tax penalty.
With the implementation of FATCA and the government entering into these IGA’s, the IRS continues to tighten the net they are casting on US citizens residing in US and abroad that have ignored their Foreign Bank Account Report (FBAR) filling requirements. The penalties for willfully choosing to not file the Form 114 by June 30th each year can be devastating, but there are programs in place for taxpayers to come forward voluntarily and remediate or eliminate potential penalties.
If you are someone who has not been compliant with their FBAR filings you should contact a tax professional as soon as possible to discuss your options.
By: Don Warrant, CPA Director
On February 5th, 2014, Governor Andrew M. Cuomo announced the largest business competition in the United States; “43North”. The competition—named after the latitudinal line that runs through Western New York—features $5 million in cash prizes, with a top prize of $1 million. The competition is part of Governor Cuomo’s Buffalo Billion initiative.
43North is designed to systematically generate new business ventures in Western New York while providing mentoring and other aid for aspiring entrepreneurs, supporting early-stage firm growth and attracting additional venture funding. The objective of this bold and proven approach is to position Upstate New York and the Greater Buffalo Niagara region squarely on the map of America’s newest innovation and entrepreneurship hotbeds.
In addition to the top cash prize of $1 million, 43North will award six $500,000 prizes and four $250,000 prizes. Winners also receive free incubator space for a year, guidance from mentors related to their field, and access to other exciting incentive programs, like Start-Up NY.
43North is open to applicants ages 18 and over from anywhere in the world in any industry, with the exception of retail and hospitality. Winners must agree to operate their business in Buffalo, New York for a minimum of one year.
The competition will be broken down into three rounds, with each round being judged independently of one another.
· Round 1 (February 5 – May 31, 2014): applications from prospective businesses will be accepted via the competition’s website, 43North.org. The purpose of Round 1 is for applicants to provide a vision for their venture, including their business concept, target customers, industry overview, competitive landscape, and revenue potential. This submission is not intended to be as comprehensive as a detailed business plan, but should provide the judges with a summary of the major elements of the venture.
· Round 2 (September 15 – September 20, 2014): the semifinalists will present further detail on their plan, along with a 10-minute online presentation to 43North’s judging panel, followed by 10 minutes of questions. The plans put forward in Round 2 will include the venture’s business concept, value proposition, competitive analysis, communication and distribution channels, client relationships, key stakeholders, resources and activities, cost structure, revenue streams, and financial considerations.
· Round 3 (October 27 – October 31, 2014): the final stage of the competition is for finalist teams to pitch their business in person to a panel of judges in Buffalo. Each team will have 10 minutes to sell their business idea, followed by 10 minutes of questions. Teams will be assessed on overall organization of the presentation; the team’s ability to “sell’ the idea and need for the company; the team’s ability to defend the plan and be responsive to questions; and the quality of the overall plan. The competition concludes with the selection of winners and celebrations.
Deadline for submissions is May 31st, 2014.
If you have questions regarding the 43 North Global Business Plan Competition please visit their website here: http://www.43north.org/43north-hits-the-road-to-promote-business-plan-competition
By: Shawn M. Frier, CPA, CFE, CMPE Director
The focus of protected health information (PHI) privacy has increased a great deal due to the rise in data breaches. In the last two years at least one case of PHI data breach has been noticed in almost 94% of healthcare practices. The magnitude and frequency of the breaches has increased to such an alarming rate that if this trend continues, the average annual cost to healthcare industries could reach $7 billion dollars.
PHI breaches can happen easily if you’re not aware of the risks that exist, both inside and outside of the practice. Encrypting data helps protect patient data and can help you avoid costly breaches. These breaches, while costly, are usually due to simple human error. For example, an employee might walk away briefly to fetch paperwork, mistakenly leaving a laptop with patient data open. It only takes a glance or a second to download or retrieve that data. Smartphone’s are another high concentrated area for data breaches. Unfortunately, multi-tasking is a necessity and many physicians and staff use Smartphone’s to conduct business due to their easy accessibility. But smartphones are just as easily accessible to a data breach. A report published 2012 by a South Florida Institute; found that 50% of breaches in 2011 were from laptops or mobile devices. 80% of organizations surveyed stated that they allowed employees to use their own mobile device, and had not taken steps to ensure data security for personal devices.
Determine what needs to be encrypted
Assess which technology poses the highest risk of being stolen or accessed by an unauthorized user. The most popular devices usually include phones, laptops, tablets and any portable hard or flash drive. You should put both physical and technical safeguards in place to minimize the amount of confidential data stored on encrypted devices. Steps healthcare providers can take to physically safeguard devices are:
- Keeping an inventory of personal mobile devices used by healthcare professionals to access and transmit PHI,
- Storing mobile devices in locked offices or lockers,
- Installing radio frequency identification (“RFID”) tags on mobile devices to help locate a lost or stolen mobile device and,
- Using remote shutdown tools to prevent data breaches by remotely locking mobile devices.
You can use technical safeguards such as accessing data on servers using remote access connection rather than downloading the data to a device. Other safeguards include:
- Installing and regularly updating anti-malicious software (also called malware) on mobile devices,
- Installing firewalls where appropriate,
- Applying encryption to PHI,
- Installing IT backup capabilities, such as off-site data centers and/or private clouds, to provide redundancy,
- Putting into place biometric authentication tools to verify the person using the mobile device is authorized to access the PHI and,
- Ensuring mobile devices use secure, encrypted Hypertext Transfer Protocol Secure (“HTTP”) similar to those used in banking and financial transactions.
Administrative safeguards are another reasonable approach when putting a plan together to secure data on mobile devices. For example, conducting periodic risk assessments of mobile device use, including an assessment of whether personal mobile devices are being used to exchange PHI and whether proper authentication, encryption and physical protections are in place to secure the exchange of PHI. Also establish an electronic process to ensure the PHI is not destroyed or altered by an unauthorized third party. These are just a few steps that administrators can take to help prevent or reduce data breaches within their practice.
If you have questions or concerns contact us here or give us a call at 716-847-2651.
By: Joseph Aquino, CPA Director
Calculating damages in patent infringement cases still poses a challenge in today’s world. In addition, expert testimony on the matter typically comes under heavy Daubert scrutiny. In the case of Brandeis University, et al, v. Keebler Co., et al, Judge Posner of the Seventh Circuit Court of Appeals (sitting by designation in a federal district court) pretty much excluded most of an expert’s proposed damages testimony — despite finding her to be “highly qualified” and quite competent to estimate reasonable royalties.
Infringing a patent
This case involved patents for a certain type of margarine that doesn’t contain any trans-fats. The plaintiffs alleged that the Keebler Company’s reduced-fat biscuit, cookie, cookie dough and crescent roll products infringed the patents. What was at issue here? The reasonable royalty that Keebler would have paid the licensor if it had just negotiated a license before it started using the infringing product rather than risk being sued.
Judge Posner stated that Keebler wouldn’t have paid a royalty that’s higher than the cost of switching to a noninfringing substitute for the plaintiffs’ margarine . . . or otherwise reworking its manufacturing process to help avoid making the infringing margarine. Posner rejected the plaintiffs’ expert’s conclusion on the basis that no noninfringing alternatives to the patented margarine could be found. (See the sidebar “Why you shouldn’t go it alone.”) But he also explained that just the lack of a perfect substitute by itself wouldn’t allow the estimation of a reasonable royalty. That royalty would depend on the costs of higher production expenses and loss of business to competitors to create the best imperfect substitute. The expert offered no evidence on either cost.
Instead, the expert based the calculation of a maximum reasonable royalty on the business’s maximum profits that she deemed to be at risk if Keebler didn’t get a license. So, she relied on three “comparable” licenses in order to project the maximum amount of profits that Keebler put at risk by simply failing to obtain a license.
Understanding the licensing issue
The court actually rejected the expert’s reliance on two of the licenses out of hand. One license resulted from the settlement of a patent infringement suit. Judge Posner found that licensee to be “wholly dissimilar to Keebler.”
As to the second license, it was also granted in settlement of litigation. The stated payment for the license was just a one-time payment, but it seemed to have been returned to the licensee as consulting fees over the next several months. Moreover, the settlement allowed for changing a strategic partnership between the licensee and a subsidiary of the licensor. And, in return for those benefits, the licensor agreed to dismiss the lawsuit and grant a license.
Judge Posner postulated that the expert had made no attempt to value any individual component of the settlement agreement that produced the second license. Therefore, she really couldn’t “responsibly” value the patent license itself.
Only the third license came even close to providing a reasonable comparable. Like the Keebler company, the licensee was a large food conglomerate that creates baked goods alleged to infringe, thus allowing an inference that Keebler would have paid just as much as the licensee. Changes occurring since that license was negotiated in 2005 would thus drive the licensor to insist on a higher royalty.
Using reasonable methodology
In the end, Judge Posner found that the plaintiffs’ expert had truly failed to use a reasonable methodology when calculating the damages by reference to two of the licenses. He also noted that the expert had failed to calculate the profits at risk or even assess the cost of noninfringing alternatives. But, he did allow her to testify on the third license, which remained a “possible basis” for estimating a reasonable royalty, and on the general principles of patent damages.
Sidebar: Why you shouldn’t go it alone
The plaintiffs’ expert in Brandeis University, et al, v. Keebler Co., et al (see the main article) got into a lot of trouble because she simply didn’t make proper use of input from other types of experts. The damages expert testified that there was simply no cheap and satisfactory substitute to the patented margarine. The expert also testified that, in order to avoid both trans-fats and use of an infringing margarine, Keebler would have had to consider all the possible effects of substituting a noninfringing margarine (which would likely cause sogginess) on consumer demand.
But the expert was an economist, and not an expert on consumer demand for cookies, and she didn’t consult with a sales or marketing expert. She did, indeed, consult with a biochemist specializing in food, but he wasn’t a food scientist. Judge Posner also faulted the expert for not consulting with an industrial baker on the cookie’s sogginess issue. He ruled that the damages expert couldn’t rely on the biochemist’s conclusion that no noninfringing alternatives were available that would cost Keebler less than a “hefty royalty to the plaintiffs.”
In conclusion, it is critical in cases such as these to make sure that input from qualified experts are chosen to verify the information utilized in each particular case. Valuation analysts and CPA’s can provide solid litigation support in these cases by researching and providing adequate comparables as well as analyzing financial results that ultimately lead to an accurate determination of value or calculation of damages.
By: Joseph Aquino, CPA, CVA Director
There is a distinction between two types of goodwill depending upon the type of business enterprise: institutional goodwill and professional practice goodwill. Goodwill in a professional practice entity may be attributed to the practice itself and to the professional practitioner.
Goodwill continues to fuel debate in divorce cases that involve professionals, such as physicians and attorneys. In an Arizona case law, Walsh v. Walsh, the court of appeals reversed the family court’s ruling that limited a law firm partner’s goodwill to the amount he would receive under a stock redemption agreement.
Disagreement over goodwill
During the divorce proceedings between Cheryl and E. Jeffrey Walsh, the parties couldn’t come to terms about the value of Jeffrey’s intangible professional (or personal) goodwill. He claimed that his interest in the law firm should be $140,000, which was the stock redemption value pursuant to the firm’s stockholder’s agreement. Jeffrey’s expert testified that, while he had professional goodwill, the only realizable benefit from his employment as of the date of divorce was the $140,000 redemption value.
Cheryl’s expert applied a capitalization-of-earnings valuation approach and examined documents related to the husband’s tax returns, earnings sustainability, historical income performance, client loyalty, and reputation. Based on those factors, and giving very little weight to the stockholder’s agreement, the expert valued Jeffrey’s professional practice at about $1.3 million.
The family court agreed with Jeffrey’s expert and found that his interest in the firm (including goodwill) and the value of his law practice were limited to $140,000. Cheryl appealed, contending that the lower court shouldn’t have limited Jeffrey’s professional goodwill as an attorney to his stock redemption interest in his firm.
Appellate court sides with Cheryl
The appellate court explained that future earning capacity isn’t goodwill per se. On the other hand, goodwill may exist when future earning capacity has been enhanced because reputation leads to probable future patronage from potential and existing clients. Like other Arizona professionals, lawyers face evaluation of their professional goodwill as a community asset under the state’s divorce law.
To determine the existence and extent of goodwill, the court noted it may consider as “determinative factors” the practitioner’s age and health, past earning power, reputation in the community for judgment, skill and knowledge, and, finally, comparative professional success.
Added to this are terms of a lawyer’s partnership agreement that may also be considered when determining the value of goodwill in a divorce context, but only as a single factor. As noted by the appellate court, “Partnership agreements are designed to deal with particular aspects of the business, and simply do not address the considerations involved in valuation for a marital dissolution.”
The court of appeals faulted the family court for failing to consider Jeffrey’s professional goodwill beyond his stock redemption interest in the firm. The court also pointed out that it had previously rejected the lower court’s approach of requiring goodwill to be realizable (something that can be bought or sold on the open market).
The court acknowledged that, when goodwill has no immediate cash value, it must apply its own discretion and judgment in making a determination. The determination, of course, isn’t limited to corporate documents setting a shareholder’s interest in the company’s assets. Instead, the court can use expert testimony and the “determinative” factors to help guide its examination of enhanced future earning capacity.
The court of appeals concluded that the family court had conflated the firm’s net assets, which were subject to the stockholder’s agreement, along with Jeffrey’s own goodwill. It also decided that he possessed goodwill beyond the amount that the family court had designated.
However, the appellate court emphasized that its ruling should not be interpreted as equating future earning capacity with goodwill. While future earning capacity may be evidence of goodwill, the earning capacity isn’t itself a divisible community asset.
Sidebar: Professional goodwill: Community property or not?
The husband in Walsh v. Walsh (see main article) argued that professional goodwill is separate from “enterprise goodwill” and isn’t divisible marital property. The Arizona court of appeals acknowledged that some states do hold that professional goodwill may not constitute marital property. But, in Arizona, the court said that consideration of the “determinative” factors demonstrates that the state does consider qualities that are attributable to the individual when determining community property values.
The husband further argued that professional goodwill is already accounted for in spousal maintenance and realized through future earnings. The court disagreed, however, comparing the divisible component of professional goodwill with an interest in pension rights — value is generated (at least partly) during the marriage, and will be realized later. Courts must ensure that they don’t divide as community property future earnings that are based exclusively on post divorce efforts.
It is critical to understand your specific state’s position on whether professional goodwill constitutes martial property due to the fact that it could have a significant impact on stock redemption value in divorce proceedings.
If you have questions regarding professional goodwill, or any other litigation concerns please contact Freed Maxick CPAs litigation support team today.
By: Jennifer Birkemeier, CPA
How does this affect taxpayers?
It is the responsibility of the taxpayer to ensure compliance with the temporary regulations. It also means the taxpayer will be responsible for adhering to the regulations for taxable years beginning on or after January 1st, 2014.
What is the benefit for taxpayers?
There has been a lot of feedback regarding the amount of time that is required to comply with the regulations and concern that the time spent will not result in reduced tax burdens for taxpayers. Recently CSP360 sponsored the inaugural AICPA Global Hospitality Conference where Mark Barbour presented updates on the repair regulations focusing on 263(a). The repair regulations will impact all industries requiring accounting method changes that may have favorable taxpayer consequences. Some of the hidden tax benefits for taxpayers that were highlighted at the AICPA conference include:
- Segregating the cost of structural components of buildings that were disposed of in prior years
- Identifying expenditures in prior years or current years that do not constitute improvements to buildings or building systems and can be expensed as repairs
- Reviewing the results of a prior year cost segregation study to identify dispositions of 1245 property
- Identifying the cost of removal of a structural component not subject to capitalization under 263A
- To segregate the cost of the eight building systems for purposes of applying the improvement and disposition rules under the final regulations
How are expenditures treated?
When capitalizing expenditures, the amounts paid fall into one of two categories:
- Amounts paid to acquire or produce tangible property, or
- Amounts paid to improve tangible property.
Generally capitalized costs include invoice price, transaction costs, and costs for work performed prior to the date the property is placed in service by the taxpayer. If the taxpayer is improving or “bettering” the real or personal property amounts that must be capitalized include correcting a material defect of the property, physical enlargement, expansion, or a material increase in capacity, productivity, or efficiency of the property. A taxpayer must capitalize costs that restore a unit of property to like new condition after the end of its class life. Costs incurred to adapt a unit of property to a new or different use must also be capitalized.
A Cost Segregation Analysis includes a thorough review of the property to properly depreciate the assets and accelerate tax deductions. These analyses include an intensive review of all blueprints and site visits to verify the assets and determine the quality of those assets. The professionals performing these analyses have an intimate knowledge of the building and building systems and provide valuable insight when examining repair and maintenance costs to determine if they must be capitalized or if they can be expensed.
CSP360 is a subsidiary of Buffalo, NY based Freed Maxick, CPAs a Top 100 accounting firm and one of the nation’s leading providers of Cost Segregation and consulting services. Our philosophy is to offer clients a 360 degree view of a taxpayer’s assets; pairing engineering and LEED specialists with accountants for a truly unique tax advisory team. Since 1995, our in house team has provided specialty studies to CPAs in a private label arrangement. Products include Cost Segregation, 179D Energy Studies and 263a. CSP360 is Circular 230 compliant and has proven methodologies that are sustainable on IRS examinations. To learn more about our unique approach click here.
By: Mike Ervin CPA, CFE
Let’s say that a client recently caught one of his employees falsifying an expense report. Your client fired the person, but because the fraudulent amount was fairly small, the company decided not to prosecute. Case closed? I hate to burst your bubble, but no. When it comes to expense account cheating, where there is one there is usually more.
It’s an unfortunate fact that the same conditions that make it possible for one employee to cheat may help others submit false expense reports. Think of it as a domino effect; small amounts often add up to big losses when several employees and multiple reports are involved in fraud.
Opportunities for expense account cheating
Sadly, there are many ways to cheat on an expense account. A common method is to mischaracterize business expenses — using legitimate receipts for non-business related activities. For example, if Linda treats her friend Sophie to a birthday dinner, that generates an actual receipt, but it shouldn’t show up on Linda’s expense account.
Requesting multiple reimbursements is a bit more risky, but it’s just as simple. If Linda wants her company to pay for Sophie’s birthday dinner twice, she simply copies the receipt and turns it in on another expense report. Even worse, she may try to be paid once for the bill, once for the receipt and once for the credit card statement.
Some workers overstate their expenses by simply doctoring the supporting paperwork by changing the numeral “3” to an “8” on a receipt. There are also cheats who invent expenses. An example of this is the employee who asks a taxi driver for an extra receipt then fills it out and turns it in for reimbursement.
All of these small expense account infractions can add up to huge sums of money. For instance, a top salesperson who traveled extensively for business defrauded his company of $30,000 over the course of three years by adopting a liberal definition of “allowable” business expenses. If tighter policies on fraudulent claims were in place, that company may not be out $30,000.
Enforce your policies
Expense account fraud could be averted in most cases, if companies would simply implement fraud control policies and procedures and then enforce them. Unfortunately, many companies establish policies but then fail to make sure that they’re followed correctly. Or worse, they put fraud control policies together that leave large gaps or “loopholes” for employees to take advantage of.
Once your company has an expense report policy in place, communicate it. A solid policy can prevent misunderstandings and make punishing infractions easier.
Moreover, your managers should keep on top of employee business travel plans and other activities that might trigger expense reports. Let’s look at Tom, who is based in Cleveland but submits a bill for a dinner in Dallas. His supervisor should have known about the trip before it happened. The supervisor should review every expense that Tom turns in and require original receipts for everything. If a photocopied receipt is necessary, the supervisor should inspect it for signs of tampering. This also means that expense reports should include details of the company and specific individuals that are being entertained, to allow for follow up related to sales generated and evaluation of effectiveness of the expenses incurred.
Even though expense tracking software isn’t a substitute for hands-on expense account reviews, it can certainly help you spot inconsistencies that develop over time. Such programs make it easy to see if an employee’s expenses have soared in recent months or are noticeably higher than normal.
Also consider a confidential fraud-reporting hotline. It will encourage anonymous reports of misdoings and signal that the business is serious about eliminating fraud.
“Reasonable” is the key word
Businesses must ensure that their antifraud policies are reasonable. If the official definition of reimbursable expenses is too narrow, some employees may be inclined to lie on their expense accounts to make up for out-of-pocket expenses.
It’s also critical to hold everyone in the organization to the same standards. Even a CEO shouldn’t be immune from approval and scrutiny from the appropriate level. A CEO who cheats on an expense account may also be perpetrating other forms of fraud, such as falsifying financial records. This in turn teaches employees that “If the CEO can falsify records, why can’t I?” Managers might be surprised to see how much their employees pay attention to their own behavior at work. If it’s not acceptable for one, it should not be acceptable for any.
Enlist an expert
If a business contacts you about possible expense account cheating, help the client understand that the incident may not be an isolated one-time problem. Bring in a fraud expert to investigate the claim and possibly to review the company’s expense reporting policies and internal controls.
If you suspect expense account cheating is going on at your business, contact us here, or call us today at 716-847-2651
By Jennifer Birkemeier, CPA
In December of 2011, temporary regulations (T.D. 9564) were published. These regulations will affect taxpayers that acquire, produce, or improve tangible property. They also mean potential significant tax savings for taxpayers.
One purpose is to clarify Sec. 263(a) of the regulations for capital expenditures, which make available tax benefits to commercial property owners through favorable rulings on building improvements and repairs. The building structure and its building systems might include: heating ventilations, electrical systems, all escalators, plumbing systems, HVAC systems, fire protection and alarm systems.
There is a process in finding these benefits, and it starts with a Cost Segregation study. The Cost Segregation study allows the commercial property owner to take advantage of the new capital improvement guidelines. This is done through qualitative tests; performed based on the cost of the unit of property and the current expenditures, and is either capitalized or expensed. While most owners want the expense, the unit of property must be defined in order to allow for this option. The new regulations will allow for expensing the repairs and maintenance to the unit once it’s defined.
Cost Segregation Studies
Cost Segregation studies help to define the units of property for the owner. In addition to this, the study can correctly identify “disposed of building components”.
Why is this an important aspect of the study? The Tangible Property regulations now allow for disposed of building components to be deducted up to their remaining depreciable basis. If a cost segregation study is not conducted than the costs of the disposed building components can’t be correctly identified, resulting in no deduction for the commercial property owner.
The Cost Segregation Partners of Freed Maxick CPAs is one of the nation's leading providers of Cost Segregation and consulting services to real estate owners. Our philosophy is to offer clients an experienced team of professionals who take a 360 degree view of a taxpayer’s assets. This helps our team identify credits and incentives that the taxpayer may benefit from. To learn more about our unique approach click here.