AZ CPA March April 2016

AZ CPA March/April 2016

Global Challenges for Benefit Plans

CPAs Can Appear in Tax Appeals Spousal LLCs in Community Property States

The Arizona Society of Certified Public Accountants y www.ascpa.com

Committed to a

strong and healthy ArizonA For more than 75 years, we have been helping take care of Arizonans.

We focus on the health of our members and the well-being of the communities in which they live. That’s why we’re proud to support Arizona Society of CPAs and the work they do to foster a strong and thriving business climate now and far into the future.

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AZ CPA The Arizona Society of Certified Public Accountants President & CEO

Cindie Hubiak

Editor

Patricia Gannon

Advertising

Heidi Frei

Board of Directors Chair Chair-Elect Secretary/Treasurer Directors

Rob Dubberly Greg Nelson Molly Montgomery Mike Allen Brenda Blunt Teresa Finley Gary Fleming Randy Fletchall Mike Holt Bill Judge Jennifer Nordstrom Mark Patton Vanesa Romero Curtiss Smith Nancy Thomas

Immediate Past Chair Anita Baker AICPA Council Members

Increase cash flows through cost segregatIon studIes and property tax reductIons

Team of CPAs, Engineers and former Real Estate Appraisers

Our Cost Segs include the impact of the Final “Repair” Regulations

Years of Arizona experience Excellent IRS Audit and Property Tax Appeal Results

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Karen Abraham Armando Roman

Chapter Presidents Southern Chapter Northern Chapter

Cathy Poore Bethany de Alva Southwest Chapter Jennifer Sullivan North-Central Chapter Ellen Carpenter AZ CPA is published by the Arizona Society of Certified Public Accountants (ASCPA) to provide information, news and trends in the profession of accounting. It is distributed 10 times a year as a regular service to members of the Society. The ASCPA, its members, board of directors and administrative staff assume no responsibility for advertisements herein. The ASCPA and the above people also assume no liability for business decisions made by readers in reference to statements and/or claims in articles or advertisements within this publication.

Opinions expressed by contributors are not necessarily those of the ASCPA. Arizona Society of CPAs 4801 E. Washington St., Suite 225-B Phoenix, AZ 85034-2021

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AZ CPA MARCH/APRIL 2016

Telephone (602) 252-4144 AZ Toll-Free (888) 237-0700 www.ascpa.com

AZ CPA Volume 32 Number 3

March/April 2016

Features Steve Harris Honored with Life 8

Membership

Steve Harris’ contributions to the profession are recognized by the ASCPA with Life Membership.

by Patty Gannon

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Global Challenges for Benefit Plans Administering retirement and benefit plans for international workforces requires care and attention to detail.

by Bertha Minnihan

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Urgent Tips for Making Your Clients’ “Tax Life” Easier

Last minute tax tips for you and your clients.

by Ira Feldman, CPA and Stephan Hart, CPA

Columns & Departments Chair’s Message by Robert E. Dubberly, CPA

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Members News

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A Dash of SALT by James Busby, Jr., CPA

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Board of Directors’ Highlights Quick Quiz

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CPAs and others may represent

clients in Arizona courts in some instances.

by Michael G. Galloway

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Arizona Society of Certified Public Accountants 4801 E. Washington St., Suite 225-B Phoenix, Arizona 85034-2021 www.ascpa.com

Non-Lawyers and Non-Arizona Lawyers Can Appear in Numerous Arizona Tax Appeals

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Spousal LLCs in Community Property States — Avoiding Late Filing of Partnership Return Penalties

by J. Michael Pusey

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ASCPA Chair’s Message

A Walk Down Memory Lane Working with the Arizona Society of CPAs (the Society) has been a wonderful experience, and it’s hard to believe that my time is quickly coming to an end.

In reflecting back to my first involvement with the Society, I received a call from Jim Buhr inquiring about my interest in joining the board of directors.

I had just moved back to Phoenix after almost three years in New York, and I was very interested in working with an organization that provides so much support for our profession. That initial call from Jim then led to my board orientation and the first time I met Cindie Hubiak, our CEO.

by Robert E. Dubberly, CPA

It’s hard to believe my term as chairman is coming to an end. I’ve truly enjoyed every minute of my time and it’s been an honor to serve.

The Society is a wonderful organization filled with absolutely great people.

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Over the next two years, I spent time learning about how the Society truly serves all CPAs within the State of Arizona. I quickly realized through my participation in the board of directors meetings, issues that impact members of the Big 4 community, for which I’m a member, may be and likely are significantly different from those issues/matters that affect other CPAs working in Arizona. During my early meetings, I remember how everyone was collegial in working through what was best for the profession regardless of one’s individual perspective.

After some time on the board of directors, I was asked and I gladly accepted an opportunity to join the executive committee as an at-large member. In this role, I was provided with a new avenue of understanding, as I got a closer view of how the Society operates in order to achieve its mission every day.

In addition to the at-large role, I’ve also served as the treasurer. However, the next step was during my year as vice chair. In this role, I was afforded the honor to attend the AICPA’s council meetings. The AICPA conducts much of its governance responsibilities through their semi-annual council meetings. At my first meeting in Boston, in addition to participating in the council meeting, I also attended a leadership conference for incoming state society chairs. As a result of this meeting, I met leadership of the AICPA as well as state leadership of many of the societies from around the country. During this year as chairman, I was able to attend my second council meeting. Much like my first board meeting of the Society, my participation in the council meetings gave me a broader perspective and understanding of all of the support and advocacy the AICPA provides to the CPA community.

Again, it’s hard to believe my term as chairman is coming to an end. I’ve truly enjoyed every minute of my time and it’s been an honor to serve. The Society is a wonderful organization filled with absolutely great people. During my time working with the Society, I’ve had the opportunity to work closely with several of the folks that keep our Society running every day. Cindie is at the center of it all. She is truly the heart and soul of the organization. Cindie – thank you for your support during my year as chairman. Adela, Patty, Elva and Sandra provided such great support during my time working with the Society. Ladies – thank you for all of the assistance, I truly could not have done my job without you. I’ve also had the opportunity to work with five board groups, each of them were unique and I learned a great deal from each and every member. I also want to personally thank each member of this year’s executive committee. Anita, Greg, Molly and Randy – thank you for your support, guidance and leadership during this year.

Last of all, Greg – I wish you the best of luck as the next chair of the Society. n

Member News Manuel Estrada, CPA, was hired as CFO of Translational Genomics Research Institute.

Henry & Horne, LLP, recently acquired Centerpoint Advisors; Centerpoint principal Jeffrey Wright, FASA, CFA, will become a director in Henry & Horne’s Litigation and Valuation Services Group.

Heinfeld, Meech & Co., P.C., promoted Brittney Williams, CPA, CGFM, to partner, Andrew Short, CPA, was promoted to managing director at Fenix Financial Forensics.

K e v i n Ye a n o p l o s , C PA , o f Brueggeman and Johnson Yeanoplos, P.C., has been appointed by the Arizona Supreme Court to serve a four-year term as a public member of the Arizona Commission on Judicial Performance Review.

James G. Busby, Jr., CPA, an attorney with The Cavanagh Law Firm, has been named to the executive committee of the National Association of State Bar Tax Sections (NASBTS), a national organization—affiliated with the American Bar Association—whose mission is to provide a forum for communication and education among the tax law sections in state and local bar associations across the country.

Congratulations to the CPA firm of Flowers Rieger & Associates, PLLC which is celebrating its 30-year anniversary and its founding member, Michael C. Flowers, CPA, who is celebrating his 40th tax season.

In Memoriam Laurie A. Callan passed away after a battle with cancer. She worked with the Virginia G. Piper Charitable Trust and served on the ASCPA nonprofit steering committee from 2011-2013.

CBIZ Audit and Tax Departments Use Star Wars Theme to Promote Food Drive CBIZ MHM, LLC, recently held a food drive to benefit the Desert Mission Food Bank. During the weeklong fundraising activities, they raised more than $18,000.

A Spectrum of Opportunities ASCPA Annual Meeting and Awards Luncheon May 19, 2016 Arizona Biltmore Resort Join us as we honor new Life Member Steve Harris, CPA, and our 2016 Excellence in Teaching Award Recipient.

We will also hear from our keynote speaker Past AICPA Chair Tommye Barie.

Register at www.ascpa.com MARCH/APRIL 2016 AZ CPA

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Steve Harris Honored with Life Membership Stephen T. Harris, CPA, a principal with REDW, will be honored by the Arizona Society of CPAs with Life Membership at the Annual Meeting and Awards Luncheon on May 19. Harris started working for Arizona’s Office of the Auditor General right out of college, then spent the majority of his career at Miller, Allen & Co., P.C. Miller, Allen merged with REDW in November 2012 and Harris leads REDW’s audit practice.

Harris has contributed greatly to the accounting profession in Arizona and currently serves on the Arizona State Board of Accountancy Auditing and Accounting Standards Committee, something he has done for more than 20 years.

“I’ve learned so much from being on the A & A Committee,” says Harris. “I’ve learned from the people who have served with me from all the different firms.

And of course, I’ve learned how to stay out of trouble!”

Harris has enjoyed volunteering: “Volunteering makes you better connected.

I never did it to get new clients; I wanted give back to the profession because I think that’s the right thing to do. When you are young, you tend to look at your peers as competition, but it is just the opposite. When you are on a committee working with people for a common goal, you get to know them and you realize there is no competitiveness.”

Being on the A & A Committee is hard work, according to Harris. “We are here to protect the public. It is hard when you are sitting across from a CPA and talking about disciplining them or maybe even taking away their license,” says Harris.

“We want to feel that person’s pain, like we were in their chair. That is why the peer-to-peer regulation of our industry is so important, but for that to continue to work, the people on the committee have to do what is right.”

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Harris is a recognized leader in the field of tribal gaming and has performed training for casinos of many different sizes. While with Miller, Allen, he was responsible for a Title 31 seminar, attended by representatives from tribal casinos throughout the Western U.S., and the Symposium on Tip Rate Determination Agreements for the Arizona and New Mexico Gaming Industry.

Harris’ firm, REDW, recently established a scholarship program for Native Americans to encourage students to pursue a degree in the field of accounting and finance. The $20,000 REDW Native American Scholarship in Accounting is administered by the American Indian Graduate Center.

“Our firm is very diverse and we are proud of the number of Native Americans working here,” said Harris.

“Culturally, and politically, there are some differences, so having them on our team gives us an advantage when working with tribal governments. Also, tribal areas are very remote, and they should have accountants from their own communities running their businesses.”

Harris says he loves his job as an auditor, “You get to go from place to place and you never know what you’ll find. It is more like being an investigator than an accountant.”

Harris recognizes the importance of the CPA. “In our firm, we really promote the importance of having the CPA credential. I think having the credential says you have integrity.”

Harris was also instrumental in getting the Mobility referendum passed and has been a member of the Society for 28 years.

In his spare time, Harris loves hiking and fixing bicycles. In addition to being the council president and treasurer for All Saints Lutheran Church, he works on their community service project – fixing bicycles and giving them to needy individuals.

“We gave away 110 bikes last year,” says Harris. “I get a lot of satisfaction from it. Bikes don’t talk back, and you can take something that looks pretty awful and make it look brand new.” n — Patty Gannon

A Dash of SALT

Are Arizona’s Disputes Regarding the Expendables Issue Finally Over?

This month’s state and local tax (SALT) column addresses Chevron — the latest, and hopefully the final, Arizona appellate court decision relating to the exclusion from Arizona’s retail transaction privilege (sales) tax deductions for expendable materials.The author represented the taxpayer in this case.

Like most states that collect sales or use tax on retail transactions, Arizona offers numerous deductions from its sales and use taxes. For example, businesses such as manufacturers, mining companies, telecommunications companies, electric companies, and others may purchase qualifying machinery and equipment tax free. But, for many years, those businesses had to grapple with the exclusion from Arizona’s sales and use tax deductions for “expendable materials.”

by James G. Busby, Jr., CPA

“Expendable” Was Not Defined Until 1999 For years, Arizona businesses and the Arizona Department of Revenue (Department) disputed the meaning of “expendable.” Until 1999, the term “expendable” was not defined in Arizona’s sales and use tax statutes. Was something expendable, and thus taxable, if it was used just once, 10 times, for a week, a month, or a year? Or, rather than refer to the number of times something could be used or the length of time it could be used, did “expendable” refer to something that, although used in a qualifying operation, is not absolutely necessary to the operation?

In 1999, the Arizona Legislature added a sentence to the statutory exclusion for expendable materials to clarify that “[f]or the purposes of this paragraph, expendable materials do not include any of the categories of tangible personal property specified in subsection B of this section regardless of the cost or useful life of that property.”

Despite the Amendment, the Department Continued Raising the Expendable Issue Despite the 1999 amendment, when performing audits or reviewing sales or use tax refund requests, the Department often argued that businesses were not entitled to a particular deduction because the items they purchased were used up in the businesses’ operations. “Expendable,” the Department argued, must still mean something because the term was still used in Arizona’s sales and use tax statutes.

James G. Busby, Jr., CPA, is a state and local tax attorney at The Cavanagh Law Firm. Busby previously worked in the SALT departments at Arthur Andersen and Deloitte & Touche. Before entering private practice, Busby was in charge of all transaction privilege (sales) tax audits at the Arizona Department of Revenue.

If you have any questions, please contact the author. He can be reached at (602) 322-4146 or JBusby@CavanaghLaw.com.

Did the Chevron Case Resolve the Expendable Issue?

On December 3, 2015, the Arizona Court of Appeals filed its decision in the Chevron case. The case involved Chevron’s sales tax refund request for taxes paid on sales of oils and greases to a customer who used them in its mining, metallurgical, and pollution control operations.

Chevron argued that the oils and greases qualified for Arizona’s deductions for machinery and equipment used in mining, metallurgical, and pollution control

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activities. The Department argued that the oils and greases were taxable because they are expendable materials used up “in minutes, days or months in mining operations.” The court sided with Chevron.

It determined that, with the 1999 amendment, the legislature “intentionally expanded the scope of the subsection (B) exemptions to include expendable materials ‘regardless of the cost or useful life of the property’ so long as ‘the tangible personal property would otherwise be exempt under the transaction privilege and use tax.”

“In light of the 1999 amendment,” the court explained, “the proper inquiry in this case is not whether the greases and oils are consumed or used up in [the customer’s] operations, but rather whether they qualify for the exemptions set forth in A.R.S. § 42–5061(B)(1), (2), or (18). If the oils and greases qualify as machinery or equipment used directly in [the customer’s] mining and metallurgical activities, they are exempt.”

Hopefully Chevron resolved Arizona’s expendables issue once and for all.

Practice Tip —Tax professionals who work for or consult with businesses that are subject to Arizona sales and use taxes should make sure their companies and clients realize that items that may have been subject to Arizona sales or use tax in the past because they are expendable may not be taxable any more. n

Employee Benefit Plan Audits May 25, 2:00-4:00 p.m.

Employee benefit plan audit deficiencies and the impact of new regulatory initiatives and accounting standards will be discussed.

Speaker: Anita Baker, CPA Register at www.ascp.com 10

AZ CPA MARCH/APRIL 2016

Global Challenges for Benefit Plans

by Bertha Minnihan

Organizing and administering retirement and other benefit plans require attention to detail and a careful understanding of applicable requirements and laws.Throw an international workforce into that mix and things become much more challenging and complex. Crisscrossing the globe is a reality of today’s business landscape as companies seek new and innovative opportunities overseas.

As a result, an awareness of the issues involved in managing an international workforce, whether inbound (foreigners working in the United States) or outbound (U.S. citizens working in foreign countries), becomes a necessity.

International retirement and benefit programs are typically grouped into one of three categories: • Government provided • Government mandated and provided by employer • Voluntarily provided by the employer

Definition of Employee First and foremost, it’s important to formalize the definition of employee in order to properly administer participation. You must determine whether an employee working abroad for a U.S. employer is still considered an employee according to the legal document governing the plan, also known as the Plan Documents.

In order to categorize someone as an employee, employers look at various factors including compensation and how that employee is paid. If the employee is paid through U.S. headquarters, this can constitute U.S.-sourced income, which may make the employee eligible for benefits in the U.S. Inversely, the Plan Document often excludes nonresident aliens if they receive no U.S.-sourced income. Therefore, if compensation is paid by local jurisdictions outside of the U.S., that employee often can be excluded from participation in the plan if he or she is a nonresident alien.

There are also potential issues when employees who are U.S. citizens are paid by the local jurisdiction. These individuals often satisfy the plan’s eligibility rules but cannot participate due to administrative or local tax issues. To avoid this, a Plan Document might exclude these individuals by requiring that eligible employees be paid on a U.S. payroll or by limiting the definition of a participating employer to the U.S. entities.

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Similar challenges exist when a sponsoring company has inbound employees.

Sponsors need to fully understand their plan’s eligibility rules in order to properly organize participation in retirement plans they sponsor. Employees often are eligible for the plan but face challenges when returning to their foreign jurisdiction.

For example, if they return to work for a foreign subsidiary of the U.S. employer, they haven’t incurred a severance for retirement plan distribution purposes because they’re still employed by the employer’s controlled group.

In this scenario, they must leave their money in the retirement plan even though they’re no longer eligible to participate.

Controlled groups have specific definitions — subsidiary-parent, brothersister, or a combined group — and have other sets of rules if the parent company is a foreign company. The controlled group rules apply to all related U.S. entities even if their common parent is a foreign company.

Breaks in Service Other issues relating to retirement plans have to do with breaks in service or length of service. The law provides special rules on what service must be counted for U.S. benefits, particularly for retirement plans. For example, if an employee spends in excess of six months abroad, does this constitute a break in service for U.S. benefits? If so, this would affect vesting provisions.

Compliance Tests More commonly referred to as nondiscrimination tests, compliance tests ensure plan provisions aren’t discriminatory toward employees based on their compensation or level in the organization. Compliance tests are required when maintaining tax qualification of a retirement plan.

It’s important to point out that for purposes of applying the various nondiscrimination rules applicable to U.S. tax-qualified retirement plans, all employees, excluding nonresident aliens,

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of all members of a controlled group for purposes of plan qualification, coverage, vesting and contribution limits, but not tax deduction rules, are aggregated and treated as employees of a single employer. Similar rules also may apply to the nondiscrimination rules applicable to certain health and welfare plans (such as VEBAs or cafeteria plans).

There also may be employees working in a foreign jurisdiction that need to be included in the compliance testing applicable to the U.S. benefit plan but are excluded due to their work location.

Careful review of the controlled group employee population is important so the compliance testing can be performed.

Understand the Differences Legal considerations vary from country to country. In order to protect themselves and their employees, plan sponsors must not only be aware of these differences, but also stay up to date on any changes to employment laws or tax treaties between U.S. and foreign jurisdictions that may impact employee benefit plans.

Employers need to understand which benefits are automatically provided by a foreign government and which are required to be provided by employers for their employees working in that country. For example, paid time off benefits, such as vacation, holidays, maternity and paternity leave, and medical leave, may not be required for employers in the U.S. but are common governmentmandated benefits in other countries.

In the U.S., for example, employers generally are free to dismiss employees, barring any discriminatory or retaliatory reasons. In some countries, such as the United Kingdom and Canada, employers have to pay damages for a dismissal that’s considered unfair—even absent any discriminatory reasons. This is a significant difference.

In addition, hiring contractors versus salaried employees abroad is a decision that hinges on understanding the criteria for legal employment. Contractors, whether local to that country or expatriate, often are required to have their own registered businesses and

invoice their hours for every contract, for example. If you hired a contractor without a registered business, then you would fall short of the law.

Here are some examples of the stark differences in legality of benefits in the U.S. versus abroad: • Foreign companies, most notably in Europe and Australia, are very generous in their policies related to vacation and sick and maternity leaves.

• Certain countries also extend leave policies to encompass other activities, such as building homes or career development.

• Benefit packages often can’t be altered without approval from a union, which plays an integral role in foreign workforces.

• Noncompete agreements are generally prohibited in foreign countries.

• The length of time required to give employees notice of possible layoffs varies across countries.

Some benefits may not be required, but it’s difficult to recruit and retain employees if an employer doesn’t offer benefits that most other employers in that country provide. It’s important to research which voluntary benefits are customarily provided by employers in a specific country.

Regardless of what benefits are required or voluntarily provided in other countries, employers should clearly define the eligibility criteria in their benefit plans, such as group health plans, retirement plans, and various cafeteria plans.

This only scratches the surface of challenges that employers face today when crossing international borders. Whether employers experience a bumpy or a smooth ride will depend on how well they educate themselves. n Bertha Minnihan is a partner at Moss Adams LLP and has extensive experience directing all phases of audits for a variety of benefit plans including 401(k), 403(b), pension, and employee stock ownership.

She currently serves on the AICPA’s Employee Benefit Plans Expert Panel. You can reach her at (408) 916-0585 or bertha. minnihan@mossadams.com.

IRS DOES NOT CALL OR E-MAIL — The IRS will not call you out of the blue, and they aren’t able to e-mail you because their systems are not secure enough. Assume that they will never call you unless they have sent you a letter first. Identity theft is a big problem. The IRS has had 3,500 agents working on it, and still last year they paid out four billion dollars in fraudulent refunds.

Fraudsters have been showing up at taxpayers’ homes, and sending real looking letters and e-mails. DO NOT RESPOND.

URGENT TIPS FOR MAKING YOUR CLIENTS’ “TAX LIFE” EASIER

by Ira Feldman, CPA and Stephan Hart, CPA It “ain’t like it used to be!” Clients used to use the IRS as a temporary savings account and collect their refund when they filed their tax return. The IRS used to have a friendlier and service -oriented posture. Notices of an adjustment came much less frequently, and a human was usually involved somewhere in the process. The ADOR used to collect the tax revenue for the state instead of allowing you to “vote” where your tax dollars went with your tax credits. We never even heard of “digital assets,” and even if we did, they were not that important. And, an “ID thief” was someone who wanted to copy your looks or hairstyle, not your bank account or tax return information.

But times have changed, and we (and our clients) need to change also. So here are some URGENT TIPS for making your tax life easier: REFUNDS — Simply, don’t have any. That way, your tax refund (or over payment applied to next year) won’t be “held up” by an over-stretched and out-moded tax administration system and very cunning ID thieves. In today’s world, it’s better to owe the IRS than try to recoup a refund. Since the interest rate on taxes due is only three percent, don’t over withhold or overestimate your taxes. It is better to pay the three percent.

THERE IS NO HURRY TO PAY — When you receive a notice in the mail about taxes due because of some type of adjustment being proposed, there is no hurry to pay it. Okay, if it’s less than $100, it may be easier just to send a check. Otherwise, have your client send the notice to you, and check it out for them. Of course, if a reply is needed or more in-depth analysis required, the CPA will need to charge for that.

99% OF ALL TAX “AUDITS” ARE DONE BY FORM MATCHING — Almost all of IRS resources for “auditing” taxpayers is devoted to Service Center matching of W-2 and 1099 forms to your tax return. Payors file these forms and send a copy to you. IRS matches your return to the forms they receive.

A mismatch will cause notices, assessments, penalties, and a lot of hassle. Be sure the items on the tax return match the forms you receive. NOTE: This filing season, penalties were increased to as much as $500 for each form that a payor does not issue. So if you make payments requiring these forms, be sure you file them.

ARIZONA CREDIT — There are two Arizona contributions credits which you can make by April 15, 2016 and credit on your 2015 Arizona Tax Return. These are the Private School Tuition Organization Credit ($2,134 / $1,067) and the Public School Extra Curricular Activity Credit ($400 / $200). The payment date of April 15, 2016 can’t be extended. As a

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bonus, you will be able to claim the contribution deduction on your 2016 Federal Income Tax Return.

Financial Planning Conference June 8 Black Canyon Conference Center Join us to get updates on a variety of financial planning topics to make your clients and your practice more successful: • State of the Economy with Elliot Pollack • Beyond Indexes/Smart Beta • Helping Your Clients Leverage Their Charitable Giving • Navigate Through the New Rules: Discussion on ACA • Elder Care: How to Protect Your Clients • Evaluating the Markets • Estate Planning for Clients Under $5M • Taxes – Newest Tips from Ed Zollars

Learn more and register by going to www.ascpa.com, and click on CPE and then conferences.

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CHARITABLE GIFTS OF PROPERTY $250+ — For those items you give to organizations like Goodwill, you cannot deduct amounts of $250 or more for any one donation. If you have a larger donation, make more trips to the donation box. Remember to get that self-completed donation form (write down what you gave and the date) in order to support whatever you claim on your tax return.

CHECK THE TITLES ON YOUR ACCOUNTS — Carefully check the account titles which appear on your 1099 forms to make sure the ownership matches that of your estate plan. For example, if you have a Revocable Trust, that most likely will be the name you should see. This should save your beneficiaries and estate advisors a lot of trouble later on.

D I G I TA L AS S E T D I S C LO S U R E AUTHORIZATION — In today’s digital world, when you go, so goes your passwords. Thus, your bank, brokerage companies, insurance companies, etc. are not likely to talk to any of your representatives or beneficiaries. You know the story, without the password, you can’t get entry into your account, and without your “secret information,” you can’t change your existing password.

So have a digital asset disclosure authorization form in your package of estate planning documents.

ID THEFT FORM 14039 – If you suspect your ID may have been stolen (I suspect that at least half of everyone’s has been) and that theft of ID may affect your tax accounts, file Form 14039. n Ira Feldman, CPA/AEP/CVA, is a president of Felco Business Services and can be reached at ira@felco.biz.

Stephen Hart, CPA, can be reached at stephen@felco.biz. Feldman and Hart are both members of the ASCPA.

Non-Lawyers and Non-Arizona Lawyers Can Appear In Numerous Arizona Tax Appeals

by Michael G. Galloway The unauthorized practice of law may not sound like an exciting topic but in the state tax field, it is significant. Arizona lawyers almost exclusively are the only professionals allowed to practice in the state courts but, to various degrees, CPAs, enrolled agents, property tax consultants and taxpayer officers and employees may represent clients at every administrative level, where most cases are resolved. Out of state lawyers can practice at all levels.

In some cases, they must associate with local counsel, register with the State Bar of Arizona, pay annual Bar dues and apply for pro hac vice (“for this occasion”) admission at every required level of administrative appeal. Before several agencies, they can appear without restriction.

In Arizona, the regulation of the practice of law is exclusively by the Supreme Court. For administrative appeals, the general rule is that only Arizona licensed attorneys may practice law before tax agencies in Arizona, and the practice of law is defined broadly. However, there are many exceptions.

• Arizona Department of Revenue (“ADOR”) • Office of Administrative Hearings (ADOR cases) • Municipal Tax Hearing Officer • Arizona State and County Boards of Equalization • Arizona Department of Transportation • County, City and Town Taxing or Appeals Officials A taxpayer may be represented by (1) a certified public accountant, (2) an enrolled agent, (3) a non-Arizona attorney that can practice before the IRS, or (4) any duly appointed representative if the dispute, including tax, interest and penalties, is less than $5,000.

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In addition, a legal entity may be represented by a (1) full-time officer, partner, member or manager of a limited liability company, or (2) an employee, provided that the entity has authorized the employee to represent it in the appeal. Legal representation cannot be the employees’ primary duty to the entity but must be secondary to his other management duties. Furthermore, the employee cannot receive additional compensation for the representation.

Finally, there is a special rule that allows property tax agents who are registered with the Arizona State Board of Appraisal to represent property owners before the ADOR, as well as the Arizona State Board of Equalization, county boards of equalization and county assessors.

Arizona State Board of Tax Appeals If the amount in dispute is less than $25,000, a taxpayer may be represented before the Board by (1) a certified public accountant, (2) an enrolled agent or (3) a non-Arizona attorney that can practice before the IRS. There is no provision for officer or employee representation.

Arizona Department of Economic Security (“ADES”) Same as the ADOR. However, there is a second ADES rule permitting (1)

an agent who is not charging a fee for the representation, (2) an employer’s officer or employee or (3) a duly authorized agent who is charging a fee and supervised by an Arizona lawyer to represent individuals or businesses in non-tax matters

Arizona Tax Court, Small Claims Appeals A person who is not an active member of the State Bar of Arizona may represent himself or a party in small claims procedures in the Arizona Tax Court if the Court allows the representation.

The Arizona Tax Court’s website says for further information on how to become a non-attorney representative, call the Tax Court at 602-372-1164.

Appeals that qualify for Small Claims are (1) property tax valuation or classification appeals of a residence where the value of the property does not exceed $2,000,000 and (2) disputes of any other tax in which the combined tax, interest and penalties are less than $5,000.

Arizona Tax Court, All Other Appeals Only licensed Arizona attorneys or non-Arizona lawyers admitted pro hac vice may practice before the Tax Court.

It is a division of the Maricopa County (i.e., Phoenix) Superior Court.

Phoenix Tax Workshop Live or by webcast You can now sign up online by going to

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AZ CPA MARCH/APRIL 2016

2016-17 Dates May 21, 2016 Jun 18, 2016 Sept 24, 2016 Oct 22, 2016 Nov 19, 2016 Jan 21, 2017 Feb 18, 2017 Apr 22, 2017

Miscellaneous Any out of state attorney that is also a CPA, enrolled agent or property tax agent probably can qualify under those exceptions. There is, however, no authority on point. Unless they are qualified to practice before the IRS, the safer practice would be for nonArizona lawyers to apply for pro hac vice admission.

Nothing in the Rules prohibits anyone from preparing tax returns, but providing tax advice is apparently limited to CPAs, enrolled agents and non-Arizona attorneys that can practice before the IRS. In addition, nothing prohibits non-lawyer officers or employees of tax agencies from carrying out the duties of their office.

Powers of Attorney/Agency Authorization Generally, the ADOR is the only Arizona tax agency that requires taxpayer representatives, including attorneys, to have a power of attorney, executed by the individual taxpayer or an officer of a legal entity, authorizing them to represent the taxpayer. The form is at www.azdor.gov/Portals/0/ADOR-forms/ TY2014/10900/10952_f.pdf. The Office of Administrative Hearings has its own supplemental form at www.azdor.gov/Portals/0/ADOR-forms/00-09/01-5414.pdf.

As a matter of practice, a taxpayer’s representative should prepare the ADOR form for any state, county or city agency where they are appearing.

For out of state, non-IRS lawyers, the form is not a substitute for pro hac vice admission; they need to do both.

Powers of attorney are not required for any level of property tax appeal, although all agents, including property tax agents, must provide an agency authorization form, found at www.azdor. gov/Portals/0/Property/82130AA.pdf. n Michael G. Galloway, Ryan Rapp and Underwood, PLC, practices exclusively in the field of Arizona state and local taxation. He can ber reached at mgalloway@ rrulaw.com.

Spousal LLCs in Community Property States — Avoiding Late Filing of Partnership Return Penalties

by J. Michael Pusey, CPA

Spouses filing a partnership return on their community property business or rental activities in an LLC may incur a late filing penalty that is unjust and could have been avoided. The general rule per the instructions to the 2014 Form 1065 are that: “Entities that are LLCs that are classified as partnerships for federal income tax purposes have the same filing requirements as domestic partnerships.”

When spouses in a community property state operate a business or rental operation through an LLC, and they’ve not opted to classify the entity as a corporation, the IRS says they can report the LLC’s activities directly on their joint return, or they can choose to report via a Form 1065, partnership return.1 The community property laws here can also arise under the laws of a foreign country or U.S. possession.2 The revenue procedure isn’t per se limited to timely filed Form 1040s.

A key feature is only spouses can own interests in the LLC. The choice goes away, and Form 1065 becomes mandatory, if the members of the LLC are more than the two spouses. For example, children or employees owning even a small interest in the LLC introduces the need for a partnership return; relief under Rev. Proc. 2002-69 pertains to a spouses-only LLC.

The language of the revenue procedure acknowledges the concept of changing the way the husband and wife choose to report: “A change in reporting position will be treated as conversion of the entity.” It would be rare, but not impossible, that switching from a partnership return to reporting directly on the Form 1040 in the following year could trigger some consequences due to the termination of the partnership from a tax standpoint.

Another provision of the revenue procedure says: “If a qualifying entity ... and the husband and wife as community property owners, treat the entity as a partnership for federal tax purposes and file the appropriate partnership returns, the Internal Revenue Service will accept the position that the entity is a partnership for federal tax purposes.”

We juxtapose this basic concept with the language of the late-filing rules governing partnerships.3 The penalty is $195 per partner, per month not to exceed 12 months. There may be relief if the spouses individually filed a timely return.4 This relief provision looks to a partnership having 10 or fewer partners, and thus a “small partnership,” and for this purpose spouses are even counted as one. The circumstances I’ve seen in a spousal LLC community property context that the penalties typically

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run around $2,000, and the spouses are late in filing as individuals if they’re also late in filing husband/wife partnership returns ... and sufficiently ill-advised to file partnership returns when the Form 1065 was unnecessary in the first place. So Rev. Proc. 84-35 may often be of no help.

The penalty can arise when the amounts on the partnership return are small or losses or even zeros.

There is also the problem of copy-cat state penalties. For example, California has the same concept but a lesser penalty.

Contesting Such Penalties In general, the Service’s position(s) on this topic are not so well defined as to guide the advocate to one place to argue the point; i.e., the Service’s position is rather ill-defined at times and better results can sometimes be had by proliferating the number of people with whom you argue. That is, respond to the notice, and if you lose there, respond to the next tier, etc. For example, if the couple is under IRS exam for the years in which there are penalties, I’d go through the usual trail first in preference to starting with the examining agent hoping to make various penalty notices go away.

Once I persuaded a first-responder to waive the basic Sec. 6698 penalty under the particular circumstances, but then we still had to write the tier-two IRS responder to try to get waived the addons to the basic penalty. Some penalty abatement successes have eliminated all of the penalty and interest, with only a first-tier review by the IRS. The position expressed by one member of the IRS National Office was basically along the lines that community property by its nature essentially creates a partnership, and community property is by its nature a partnership unless one actively takes the step to remove the partnership label by putting the information on the Form 1040.

According to the Internal Revenue Manual, the “legal position of the Service is that for calendar years that the husband and wife did not file an income tax return, the wholly owned

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LLC is considered a multi-member LLC classified as a partnership.”

An unlikely, but possible, circumstance arguing against this very strict line of reasoning is you’d require a Form 1065 even when a husband/wife had an LLC in a community property state yielding figures so small that when added into their other income, they didn’t even have to file a Form 1040.

This could trigger a requirement to file a small dollar partnership return even when the couple didn’t have to report on a Form 1040.

There are no regulations under this code section, but the statute seems clear in saying that the penalty applies only if there was a requirement to file a partnership return. My basic argument is that to apply the penalty in the circumstances of Rev. Proc. 2002-69 is contrary to the basic language of the statute: The penalty is imposed “if any partnership required to file a return under section 6031 for any taxable year fails to file such return” on time.

Failure to provide required information on the return can also trigger a penalty under the statute, but the penalties the practitioner has seen focus on the basic scenario of late filing.

Section 6031 in turn refers to Section 761, and while that trail is a complex one, the basic argument we make is that the language of the relief provided in Rev. Proc. 2002-69 is quite broad and rather easily applied. If the couple satisfied the revenue procedure, the LLC was not required to file a partnership return for such year. The penalty is supposed to be applied only when a partnership return was required.

Note the penalty is really assessed against the partnership, not the partners, which also raises to mind the possible strategy of abandoning the LLC if the penalties are unreasonable in relation to the amounts involved.5 I confirmed with a member of the IRS Office of Chief Counsel the position seemingly expressed in the IRS Manual, which is that the couple can even switch year to year in treating the LLC as a partnership or not; i.e., going directly to the Form 1040.

“A change in reporting position is treated as a conversion of the entity for federal income tax purposes. There is no restriction on the timing or frequency of changing reporting positions and the resulting conversion from disregarded entity to partnership or from partnership to disregarded entity.6 Consistency often plays an important role. For example, the accounting method regulations stress consistency.

But here, there is no consistency requirement. Even if the couple filed as a partnership in the year preceding the year in which they filed a delinquent partnership return, they weren’t “required” to file the delinquent Form 1065 that yielded the penalty.

Possible circumstances where one might want to switch from H&W partnership reporting to reporting directly on the Form 1040 include, e.g., Section 1031 situations which may be simpler with direct ownership or reporting in the year a spouse dies. If the community half goes directly to the surviving spouse so there is community up to the death of the predeceasing spouse then non-community vesting in the surviving spouse the rest of the year, particularly when the activities within the LLC are rather complicated anyway, reporting directly on the final joint return might be simpler and less time consuming. In these circumstances, per informal advice from the IRS National Office, one would want to disclose in the later year that there is direct reporting versus partnership reporting in the previous year, citing Rev. Proc. 2002-69.

To impose the penalty for late filing of a partnership return in the circumstances of Rev. Proc. 2002-69 is contrary to the legislative history.

“The penalty only applies where a partnership return is required to be filed. Thus, an unincorporated organization which has elected (under section 761(a)) not to be treated as a partnership is not subject to these penalties since no partnership return is required to be filed by that organization.” 7 The above legislative history seems directly on point in circumstances conforming to Rev. Proc. 2002-69.

The legislative history confirms that the purpose of the statute was more complex circumstances, particularly large partnerships and tiered partnerships. If a husband-wife LLC in a community property state does opt to report as a partnership and the LLC invests in a partnership, that is in a sense a tiered partnership reporting, but it is still not within the circumstances contemplated by the legislative history.

“The number of large partnerships, particularly those with tiered ownership structures, increased dramatically in recent years. Many of these new large partnerships are complex tax shelter arrangements. In these arrangements, it is often difficult to identify the taxpayers who may ultimately be affected by an adjustment to a partnership item. The entity, for example, may be composed of several tiers, the partners’ living trusts, corporations, individuals, and other partnerships.

The IRS has identified instances in which large complex partnerships have not filed the annual partnership information return or, if filed, the return does not contain the information to identify the ultimate taxpaying partners. Consequently, the IRS has been forced to spend considerable time and resources attempting to determine who the partners are and whether they have reported their distributive share of partnership items.”8 The circumstances as contemplated in Rev. Proc. 2002-69 are the precise opposite of that contemplated by the legislative history. Also, the IRS has recourse to penalizing the late filing of the Form 1040.

Penalizing the taxpayers for late filing of an information return that could have been skipped anyway seems an offense to common sense, a trap for those who inadvertently file the Form 1065 when it wasn’t even required.

Other arguments that might be raised in fighting penalty notices against husband-wife LLCs that filed a delinquent Form 1065 in community property states include the following: • The activities at the partnership level are minimal or even losses,

and if sizable, they were a one-time only sale.

• There is the first-time argument; i.e., the penalty should be abated if it is the first offense.

Rare but possible is to fault the IRS for its erroneous notification process.

The notices issued to taxpayers are sometimes at least composed paragraph by paragraph by an IRS employee that put in code sections and paragraphs that didn’t have anything to do with the topic. When a notice happens to contain material errors, the practitioner can argue the IRS hasn’t even clearly notified the taxpayer why the penalty is being imposed.

Does “Un-Filing” Avoid the Penalty?

Can you “un-file” the Form 1065?

Can you amend a partnership return making the original return all zeros and thus avoid the penalty?

At the same time, the individuals would amend their individual returns to back out the flow-through partnership items and insert the same information (in different detail) on their Form 1040. If there is net income, there would normally be a net minus to make the partnership income zero (“un-filed”) and a corresponding net plus in other areas of the Form 1040.

If the details involved real estate rentals, all the change would normally be within Schedule E of the 1040 which includes directly owned real estate rentals as well as partnership flow throughs. The details would change in so far as the substrata, or lack thereof, but the net effect would be no change in the tax.

I once discussed the “un-filing alternative” with the IRS National Office and the representative said this wouldn’t avoid the original penalty. The reasons for that conclusion weren’t entirely clear to me but ran along the lines of, “Well, you filed a partnership return.”

The Internal Revenue Manual generally contemplates that classification changes can be achieved by amended returns.9 In discussing our particular situation of community property con-

siderations, it provides: “Limitations on the filing of amended returns resulting in classification changes are no different from limitations on other amended returns.”10

Going Forward The problem should be avoided by not filing a late partnership return when that return need not be filed under the details of Rev. Proc. 2002-69.

I would encourage the IRS to publish a ruling on this topic if they’re officially going to take the position that filing a partnership return triggers a late filing penalty when the return didn’t need to be filed under Rev. Proc. 2002-69. Of course, I would prefer the ruling say they’re not going to impose a late filing penalty when the late return need not have been filed anyway because the statute imposes a penalty only when a return is required to be filed. n

Endnotes: 1. Rev. Proc. 2002-69 (2002-2 C.B. 831) 2. See “An Overview of Community Property Law, The Basic Rules for Determining the Classification of Property,” Ikard Golden Jones, PC, http://igjlaw.com/alvin_golden_articles/ACTECCP.pdf.

3. Sec. 6698(a)(1) 4. Rev. Proc. 84-35 (1981-1 C.B. 651) 5. Sec. 6698(c) 6. https://www..gov/irm/part5/irm_05-001021.html#d0e105 7. General Explanation of the Revenue Act of 1978, H.R. 13511, 95th Congress, Public Law 95-600, prepared by the Staff of the Joint Committee on Taxation, March 12, 1979, p. 137-139.

8. Ibid.

9. https://www.irs.gov/irm/part5/irm_05001-021.html 10. https://www..gov/irm/part5/irm_05001-021.html#d0e105

J. Michael Pusey, CPA (in California), is the founder of JMP Charitable Management Services. He co-authored Tax Planning Techniques for Individuals, AICPA Tax Study No. 2, Revised Ed. He has written numerous articles on charitable planning and other tax topics. Contact him at www. jmpcms.com.

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ASCPA Conferences Conference Dates for 2016-17 Financial Planning Conference June 8, 2016

Highlights of January Board of Directors Meeting Among other actions at its January 27, 2016 meeting, the ASCPA board of directors reviewed the following:

Black Canyon Conference Center

Consent Agenda

Not-for-Profit Conference June 22, 2016

The consent agenda, which included the board minutes, financial statements and the 2016-2017 Foundation budget, was approved as presented.

Black Canyon Conference Center

2016-2018 Strategic Plan and 2016-2017 Measurement Approval

Corporate Finance Conference August 26, 2016

After review, the board voted to adopt the 2016-2018 Strategic Plan and approved the 2016-2017 annual measurements.

Forensic & Litigation Services Conference September 8, 2016

AICPA Resolution Request on Membership Ballot The board approved a resolution supporting the AICPA’s proposal to form a joint venture with the Chartered Institute of Management Accountants.

ASCPA Learning Center or Webcast

Nominating Committee Report

Business Valuation Conference (11:30 a.m. to 4 p.m.)

September 9, 2016

Greg Nelson, chair of the committee, shared the names of the nominated board members.

ASCPA Learning Center or Webcast

Mission Moment Cindie Hubiak reviewed highlights from the last quarter through pictures.

Construction Industry Conference October 19, 2016 Desert Willow Conference Center

Arizona Federal Tax Institute Conference November 3-4, 2016 Black Canyon Conference Center

Emerging Leaders Conference November 18, 2016

Legislative Update As part of the legislative update, Heidi Frei showed the first of two advocacy videos to educate members on the importance of the Society’s advocacy efforts.

Ryan and Kevin DeMenna thanked the board for their support of PAC activities, shared how favorably the Society is viewed by legislators and talked with the board about the current legislative session.

Strategic Plan Update Cindie provided information about our measurements, the ambassador program, complimentary seminars and print ad campaign.

A Day in the Life

Technology for CPAs Conference December 5, 2016

Brenda Blunt and Nancy Thomas each shared the challenges and joys they experience in their life and job.

Desert Willow Conference Center

Other Business No other business was conducted.

Accounting & Reporting Standards Conference January 11, 2017 Black Canyon Conference Center

Governmental Accounting Conference February 3, 2017 The Arizona Biltmore

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If you have questions or would like additional information, please contact Cindie Hubiak at (602) 324-2888; AZ toll free at (888) 237-0700, ext. 203; or chubiak@ascpa.com.

AZ CPA Quick Quiz You’ve Read It, Now Get Credit Take this quiz online or submit this hard copy on AZ CPA content.

Receive a score of 70% or more and earn one hour of CPE credit in specialized knowledge. It’s that easy!

Fees: Members $25 Non-members $40 Online Access Login to www.ascpa.com and go to CPE/OnDemand CPE Quick Quiz to access links to all active quizzes. Purchase quiz and the quiz link and password will be emailed to you. Your results will be sent immediately after completing, and certificates are emailed within two business days.

Hard Copy Please select one answer for each question. Fill out registration/payment information below and mail or fax to the Society office. Quiz results and certificates will be emailed to the address provided on the registration form. *This quiz will be available until March, 2017. Please note that users have three attempts to pass the quiz with at least a 70% score.

March/April 2016 Issue of AZ CPA* 1. At the Annual Meeting on May 19, Stephen Harris will:

m Become A Life Member m Be the Keynote Speaker m Become Chair of the Society 2. What was added to A.R.S 42-5061 to define “expendable”?

5. How many tax audits are done by Form Matching?

m 100 percent m Nine percent m 99 percent

7. What is the only Arizona tax agency that requires taxpayer representatives to have power of attorney?

m Arizona State and County Board of Equalization mArizona Department of Revenue m Arizona Department of Transportation 8. What two ways can spouses in LLCs file their property taxes? m Form 1065 and their joint

return m File as individuals and send a letter m Just the form 1065 and a letter 9. What is the charge for filing Community Property Taxes late?

m An automatic audit m $2,000 m $195 per partner per month up to 12 months 10. What resolution did the board vote on for the AICPA membership ballot request?

6. What form do you fill out if your ID has been stolen? m Form 1099

m To form a joint venture with the Chartered Institute of Management Accountants m Increase the categories of memberships m Open memberships to more than just CPAs

m Goods or services that were only used once m Form 4801 m Team of people to fight crime m Form 14039 m Expendable materials do not include any of the categories of tangible personal property Registration specified in subsection B of this section regardless of the cost or Name: ____________________________________________________ useful life of that property

Email:_____________________________________________________

3. What is a category that retirement and benefit programs get grouped into? m Government Provided

m Employer Mandated m Medicare

Telephone: _________________________________________________

Payment

m Member: $25 m Non-member $40 Checks: Please make payable to: The Arizona Society of CPAs Credit Card:

m Visa

m MasterCard m American Express

4. What is the purpose of a compliance test when it comes to retirement plans?

Credit card #: _______________________________________________

m Ensure plan provisions don’t discriminate against employees m Maintain tax qualifications m Ensure plans are compliant with organizations

Name on Card: _____________________________________________

Expiration Date: _____________________________________________

Mail to: ASCPA, 4801 E. Washington St. Suite 225-B, Phoenix, AZ 85034-2021; fax to (602) 324-6043; scan and send to ASCPACPE@ascpa.com.

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TWO PARTNER CPA FIRM SEEKS SUCCESSION PLAN — Located in north central Phoenix the firm serves

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Miscellaneous BUSINESS PROPERTY TAXES TOO HIGH? — I’ve been successfully appealing property tax assessments for over 15 years, both real estate and personal (business) property on a contingent fee basis. The annual business property reports are also filed for a flat fee. Reasonable rates. Arizona CPA. Visit my pages on LinkedIn, Facebook and Twitter. Call John at ASMR Consulting LLC, (480) 204-1289.

For information about classified ads, visit www.ascpa.com and go to marketplace.

For display ads, contact advertise@ascpa.com.

Let us be your Wingman Join the ASCPA Young Professionals and GET Phoenix for a Happy Hour Mixer April 27 from 5:30 – 7:30 p.m. at Culinary Dropout in Scottsdale Register now at www.ascpa.com/wingman Free for ASCPA Members — Complimentary Appetizers and Cash Bar 22

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Focus on CFOs and Controllers Advanced Controller and CFO Skills – March 22 Identify the 10 critical skills that add value to your company and boost your career.

Align your personal goals with the organization’s mission and improve your skills in five key areas needed for success. Know how to become a powerful agent for positive change and an advocate and coach for your team.

The New Controllership: Keys to Boosting Corporate Performance – March 23 Explore how you can influence your organization’s success and make the most of your company’s potential. Apply techniques for managing a more successful organization. Find new ways of achieving greater success as an individual.

Current Developments and Best Practices for Today’s CFOs and Controllers – March 29 Understand the latest trends impacting CFOs, controllers and finance professionals.

Understand how domestic and global economic conditions could impact your organization. Lead your organization into the rapidly changing decade.

Register at www.ascpa.com

Conversations with the Kachina

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Arizona Society of CPAs 4801 E. Washington St., Suite 225-B Phoenix, AZ 85034-2021

PRSRT STD U.S. Postage PAID Phoenix, Arizona Permit No. 952 ADDRESS SERVICE REQUESTED

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