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The 2010 Small Business Jobs Act

A wide range of tax breaks and incentives are now available for small business as a result of the recently enacted 2010 Small Business Jobs Act. The new Act also includes some "offsets" which are designed to raise tax revenues. These are only the highlights of the most important changes in the new law we feel our clients can benefit from:

Provisions to Encourage Investment

Increase of Section 179 Expensing and Expansion to Certain Real Property: Under pre-2010 Small Business Jobs Act law, taxpayers could expense up to $250,000 of qualifying property-generally, machinery, equipment and certain software. This annual expensing limit was reduced (but not below zero) by the amount by which the cost of qualifying property placed in service in tax years beginning in 2010 exceeded $800,000 (the investment ceiling). Under the new law, for tax years beginning in 2010 and 2011, the $250,000 limit is increased to $500,000 and the investment ceiling to $2,000,000.

The new law also makes certain real property eligible for expensing. For property placed in service in any tax year beginning in 2010 or 2011, the up-to-$500,000 of property expensed can include up to $250,000 of qualified real property (for example qualified leasehold improvements).

Extension of Bonus Depreciation: In previous legislation, Congress allowed businesses to more rapidly deduct capital expenditures of most new tangible personal property, placed in service in 2008 or 2009, by permitting the first-year write-off of 50% of the cost. The new law extends the first-year 50% write-off to apply to qualifying property placed in service in 2010.

Provisions to Provide Access to Capital

100% Exclusion of Small Business Capital Gains: Before the 2009 Recovery Act, individuals could exclude 50% of their gain on the sale of qualified small business stock (QSBS) held for at least five years. To qualify, QSBS must meet a number of conditions. Under the 2009 Recovery Act, the percentage exclusion for gain on QSBS sold by an individual was increased to 75% for stock acquired after Feb. 17, 2009 and before Jan. 1, 2011. Under the new law, the amount of the exclusion is temporarily increased yet again, to 100% of the gain from the sale of qualifying small business stock that is acquired in 2010 after date of enactment and held for more than five years. Additionally, the new law eliminates the alternative minimum tax (AMT) preference item attributable for that sale.

General Business Credits Carried Back Five Years: Generally, a business's unused general business credits can be carried back to offset taxes paid in the previous year, and the remaining amount can be carried forward for 20 years to offset future tax liabilities. Under the new law, for the first tax year of the taxpayer beginning in 2010, eligible small businesses can carry back unused general business credits for five years. Eligible small businesses consist of sole proprietorships, partnerships and non-publicly traded corporations with $50 million or less in average annual gross receipts for the prior three years.

General Business Credit Not Subject to AMT: Under the AMT, taxpayers can generally only claim allowable general business credits against their regular tax liability, and only to the extent that their regular tax liability exceeds their AMT liability. A few credits, such as the credit for small business employee health insurance expenses, can be used to offset AMT liability. The new law allows eligible small businesses, as defined above, to use all types of general business credits to offset their AMT in tax years beginning in 2010.

S Corporation Holding Period: Generally, a C corporation converting to an S corporation must hold onto any appreciated assets for 10 years following its conversion or face a business-level tax imposed on the built-in gain at the highest corporate rate of 35%. This holding period is reduced where the 7th tax year in the holding period preceded the tax year beginning in 2009 or 2010. The 2010 Small Business Jobs Act temporarily shortens the holding period of assets subject to the built-in gains tax to 5 years if the 5th tax year in the holding period precedes the tax year beginning in 2011.

Provisions to Promote Entrepreneurship

Increased Deduction for Start-Up Expenditures: The new law allows taxpayers to deduct up to $10,000 in trade or business start-up expenditures for 2010. The amount that a business can deduct is reduced by the amount by which startup expenditures exceed $60,000. Previously, the limit of these deductions was capped at $5,000, subject to a $50,000 phase-out threshold.

Provisions to Promote Small Business Fairness

Limitation on Penalty for Failure to Disclose Certain Reportable Transactions (Section 6707A Penalty): The new law limits the penalty to 75% of the decrease in tax resulting from the transaction. The minimum penalty is $10,000 for corporations and $5,000 for individuals (for failure to report a listed transaction, the maximum penalty is $200,000 and $100,000, respectively).

Deductibility of Health Insurance for the Purpose of Calculating Self-Employment Tax: The new law allows business owners to deduct the cost of health insurance incurred in 2010 for themselves and their family members in calculating their 2010 self-employment tax.

Offsets - Reducing the Tax Gap

Information Reporting Required for Rental Property Expense Payments: For payments made after Dec. 31, 2010, the new law requires persons receiving rental income from real property to file information returns with the IRS and service providers, reporting payments of $600 or more during the tax year for rental property expenses. Exceptions are provided for individuals renting their principal residences on a temporary basis.

Increased Information Return Penalties: Effective for information returns required to be filed after Dec. 31, 2010. The most common information returns this applies to include Form 1099's and form 1098's.

Offsets - Promoting Retirement Preparation

Allow Participants in Governmental 457 Plans to Treat Elective Deferrals as Roth Contributions: For tax years beginning after Dec. 31, 2010, the new law will allow retirement savings plans sponsored by state and local governments (governmental 457(b) plans) to include designated Roth accounts. Contributions to Roth accounts are made on an after-tax basis, but distributions of both principal and earnings are generally income tax-free.

Allow Rollovers from Elective Deferral Plans to Designated Roth accounts: The new law allows 401(k), 403(b), and governmental 457(b) plans to permit participants to roll their pre-tax account balances into a designated Roth account. The amount of the rollover will be includible in taxable income except to the extent it is the return of after-tax contributions. If the rollover is made in 2010, the participant can elect to pay the tax in 2011 and 2012. Plans will be able to allow these rollovers immediately as of date of enactment.

Permit Partial Annuitization of a Nonqualified Annuity Contract: The new law permits holders of nonqualified annuities (annuity contracts held outside of a qualified retirement plan or IRA) to elect to receive a portion of the contract in the form of a stream of annuity payments, leaving the remainder of the contract to accumulate income on a tax-deferred basis.

Offsets - Closing Unintended Loopholes

Source Rules on Guarantee Fees: Amounts received directly or indirectly for guarantees of indebtedness of a U.S. payor issued after date of enactment are sourced, like interest, in the U.S. As a result, amounts paid by U.S. taxpayers to foreign persons will generally be subject to U.S. backup withholding tax.

A reminder that these are only highlights of the most important changes in the new law. For further details on the 2010 Small Business Jobs Act, please contact a member of your Summit Tax Team or your tax advisor. We are available to discuss how these incentives can benefit your business.

The materials created through August 2011 are when the professionals of Summit Financial were with Ogilvie Security Advisors Corp. The professionals of Summit Financial have not been with Ogilvie Security Advisors Corp. since August 31, 2011 and have no further affiliation with that organization.