Federal Gift and Estate Law in 2016 and Beyond

By Mary Randolf For the foreseeable future, the federal estate tax will continue to affect only the richest families in America. Under legislation passed by Congress on New Year’s Day 2013, the estate tax exemption was made permanent at the $5 million 2012 rate, but adjusted for inflation each year. Of course, calling the tax law “permanent” […]


If you are using W2, you pay taxes first. In using 1099, you subtract all your expenses and depreciating assets and other deductibles from your income and you pay less taxes. Do not be like Donald Trump, paying zero taxes. We need to support our schools and other infrastructures to build more educated workers that can compete the global market.



What Should Freelancers Do With Both W-2 and 1099 Income and Expenses?

You’ve earned some of your income as an employee that has gotten reported on a W-2. Taxes have been taken out. The rest of your income is from doing freelance work that has been reported (and sometimes it hasn’t been) on 1099’s. No taxes have been paid on this money. How should you proceed?

The W-2 wages get reported as wages on the front of the 1040. The money you earned directly whether or not a 1099 was issued to you is reported as gross receipts on a Schedule C which is the form for sole-proprietors and freelancers. Please note that in your business the word “freelancer” may be used to mean temporary employees; you will be paid as a salaried employee even though you are not on a full time contract or getting benefits. For tax purposes, you are not a freelancer.

Social security taxes (FICA and Medicare) are handled differently for W-2 work than for self-employment work which is what you do as a freelancer. If you are on a W-2, half of your Social Security taxes were withheld from your pay and your employer paid the other half. If you are self-employed, you pay both sides of your self-employment taxes on Form SE; you will get a deduction for half of these taxes on the front of the 1040.

Business expenses for wage or W-2 work are handled differently than they are for freelance or self-employment work. W-2 expenses are put on Form 2106 which is for Business Expenses. They are subject to a 2% floor on the Schedule A. This means that before you even think about taking business expenses, you are only able to take the amount over 2% of your adjusted gross income. Additionally these expenses go on a Schedule A; other expenses on here are state and local taxes, contributions, and mortgage interest and real estate taxes. For 2015, you must have more than $6,300 of these expenses if you are single or $12,600 if married filing jointly to make it worthwhile to file Schedule A and not just take the standard deduction.

Business expenses for you as a freelancer get deducted directly from your income on your Schedule C. In other words, if you make $15,000 and have $5,000 of expenses, your taxable freelance income is $10,000.

How do you divide expenses between your W-2 income and your freelance income? Business expenses are supposed to be for specific business purposes. Thus you should know what an expense was for. If you had to travel to Seattle for a freelance job, then those expenses should be handled on your Schedule C. If the job was for a W-2, then the expenses should be handled on a 2106.

Too often, people try to put all their expenses on their Schedule C because either they don’t have enough expenses to itemize on a Schedule A or they have so many expenses that they hit the alternative minimum tax. Doing this is not acceptable and may well be disallowed at an audit.

Most expenses should be traceable to a particular job. If you take someone out who has already given you a freelance contract and you are discussing further work, clearly this expense goes on a Schedule C. There are some expenses, however, that you have that cannot be specifically allocated to a Schedule C or a 2106. Say you work at different W-2 and freelance assignments in the same field, all on short term contracts. Leaving aside the requirements for employees to have to have a cell phone and the question of what percentage of the cell is deductible as business rather than personal use, how would you allocate the portion of your cell phone you should take for business purposes? The IRS believes that you should allocate according to your income. That means if you make $30,000 on your W-2 and $20,000 on your Schedule C and if you have $1000 in deductible phone expenses, $600 or 3/5 should go on your 2106 and $400 or 2/5 should go on your Schedule C.

Remember I said that this allocation is only for something you can’t directly trace. If you had to get a SIM card for a tour you did in Europe playing drums for a group on tour and for which you got paid as a freelancer, that expense can be directly attributed to your 1099 work and put on your Schedule C.

Some people will say that they should be able to allocate by a different method. The IRS also says that other reasonable methods can be used but you would have to back up these methods with proof. Say you believed that 50% of your time was spent on your freelance business, I would suspect that you would have to produce actual records of time spent if you couldn’t directly trace the expenses. Most people don’t actually have such proofs. Thus proving another method might turn out to be difficult.

On the specific subject of taking home office expenses, be careful because home office rules can trip you up if you try to allocate them . Besides that home office expenses are much more difficult to take for W-2 work than for 1099 or Schedule C work, any home office be it for W-2 or 1099 work has to be exclusive. That means no other work can be done in the same space than for the purpose you deduct it for. That means you cannot have the same office if you believe you are entitled to it for your W-2 work and for your 1099 work. Thus because your equipment is in your home office, you also cannot use the same computer for both. You cannot use the same physical space. It doesn’t matter if you say you work for the W-2 job at one time or for freelance at another. I understand that you might find this puzzling. However, please understand these are the rules. If you are audited, the agent may visit you to take a look at your home office. If you have a multiple use for the home office (which could also mean that it’s used for personal purposes, that it’s shared by your partner or children, or that you’re using it for your W-2 work when you’ve deducted it for your Schedule C income), the deduction could well be disallowed.

What Should Freelancers Do With Both W-2 and 1099 Income and Expenses?

For a self-employed:
Gross Income – Expenses = Net Income

Rick Reporter received a check for the full amount of $1,000 from MarinerMonthly.com. The numbers look like this:
$1,000 Gross self-employed income
–    100  Expenses
$   900 Net Self-employed Income

  • A self-employed’s tax is calculated on net income.
  • With his net income he buys food, pays rent, goes to the casinos — and he pays taxes.
  • When a bank loan officer asks a self-employed to state his income the banker is asking: How much is your net self-employed income?
  • ———-

Taxes: The self-employed pay twice as much Social Security and Medicare (FICA) taxes, because employers normally pay half. Self-employed folks will typically pay all 15.3% — a significant portion of their income. (That’s 12.4% for Social Security and 2.9% for Medicare.) On the other hand, work-related expenses such as postage, travel, Internet access, and home-office maintenance can be deducted on your tax return. Taxes are more complicated for self-employed people, as they often have to make quarterly estimated tax payments throughout the year.

Insurance: Many employees get access to discounted health insurance, often along with life insurance, disability insurance, and other benefits. Self-employed people have to pay for their own — though health insurance premiums can be deductible.

Work expenses: As an employee, you’re provided with the office essentials, such as a desk, a computer, etc. If you’re self-employed, then you must provide them yourself.

Retirement: Many employers help their workers save for retirement by providing 401(k) plans or similar plans, often offering matching funds. Freelancers and contractors get none of this and must save on their own.

If you’re an employee, you pay only one-half the Social Security tax (your half is 7.65%) on wages up to $113,700, plus one-half the Medicare rate (your half is 1.45%) on all wages. See IRS Publication 225. Your employer pays the same. If you have income over $200,000, you’re subject to an additional 0.9% Medicare tax withholding on all your wages. The additional Medicare tax does not apply to employers.

This is an even more striking comparison in 2014. The Social Security wage base is expected to increase from $113,700 for 2013 to $117,000 for 2014. That’s not the only thing to keep in mind, of course, but it does suggest that it can be shortsighted to turn down employee status. Apart from tax law, employee status carries a host of nondiscrimination laws, pension and benefits laws and wage and hour protections that apply to employees but not to independent contractors.

For all of these reasons, employers have big incentives to use independent contractors. Often this can be done within the confines of the law in ways that are perfectly proper. Yet some employers push the envelope to treat workers as independent contractors who are clearly employees if anyone bothers to look.

Should I pay this person as a 1099 contactor or W2 employee?

Should they be paid as an independent contractor or withhold taxes from their compensation as an employee? The biggest determining factors should not be what are easiest for the owner but rather what are correct in the eyes of the Internal Revenue Service.

In the past decade, the IRS has developed guidelines and common law rules to help small business owners make the right choice between independent contractor and employee. The decision should be well thought out and well documented in case of possible disputes later from either the helpers or the IRS. The trend has been for the IRS to view all helpers under the direct control of a business owner as their employees not as contractors. This view allows for an easier method of tax collections direct from a single business owner rather than chasing down several independent contractors.

So, be careful with your choice, if the helpers you paid as 1099 contractors are determined later by the IRS as W2 employees then the Trust Fund recovery penalty which is federal income tax, social security and Medicare taxes not withheld will be assessed to the owner.

Below are excerpts direct from the irs.gov web site and might help you make the correct choice.

The general rule is that an individual is an 1099 contractor if you, the person for whom the services are performed, have the right to control or direct only the result of the work and not the means and methods of accomplishing the result.

Example:) Vera Elm, an electrician, submitted a job estimate to a housing complex for electrical work at $16 per hour for 400 hours. She is to receive $1,280 every 2 weeks for the next 10 weeks. This is not considered payment by the hour. Even if she works more or less than 400 hours to complete the work, Vera Elm will receive $6,400. She also performs additional electrical installations under contracts with other companies that she obtained through advertisements. Vera is an independent contractor.

Common 1099 and W2 Rules

Facts that provide evidence of the degree of control and independence fall into three categories:

Behavioral: Does the company control or have the right to control what the worker does and how the worker does his or her job?

Financial: Are the business aspects of the worker’s job controlled by the payer? (these include things like how worker is paid, whether expenses are reimbursed, who provides tools/supplies, etc.)

Type of Relationship: Are there written contracts or employee type benefits (i.e. pension plan, insurance, vacation pay, etc.)? Will the relationship continue and is the work performed a key aspect of the business?

The major difference

You give both employees and contractors payment for their work. Why do you need to use a Form 1099-MISC to report the wages for contractors, but a W2 for employees?

The reason is simple: with an employee, you withhold social security tax and Medicare payments. You may withhold money for various types of insurance also.  The IRS wants to see these amounts itemized, so you give the employee a Form W-2. (You send a W-3 along with any W-2s to the IRS.)

When paying a contractor, however, you do not withhold anything. The contractor, then, is responsible for paying all of the taxes on the money. This includes paying both the employer’s part of social security and the employee’s part. The IRS just wants to know how much money you gave the contractor, so you give the contractor a 1099. (You send a 1096 along with any 1099s to the IRS.)

For employer

What records should I keep?

Keep the following payroll tax-related items:

  • Forms 941 or 944
  • Employee copies of forms W-2 and W-3
  • Employee Forms W-4 and W-5
  • Records of fringe benefits paid to employees, and how you determined their value
  • Names, addresses, and Social Security numbers of all employees
  • Dates or employment for each employee
  • Special payments such as sick pay or lump sum leave payments
  • Travel vouchers and other accounting for employee reimbursements
  • Receipts, canceled checks, etc. for deposits made or tax paid with return

Vendor or nonemployee payments:

  • Names, addresses, and taxpayer ID numbers of payees
  • Dates of payment
  • Forms W-9
  • Payer copies of 1099-MISC and other information returns
  • Forms 945
  • Description and purpose of payments made
  • Notices regarding backup withholding

Visit the IRS website for additional information on payroll and employment record-keeping.

For 2009, whether you were part-time or full-time, be sure to capitalize on many of the self-employment tax benefits provided by the Federal government or the IRS. Many expenses that you normally would incur as a W-2 employee can become legal, tax deductible business costs.

Tax Deduction for Self-Employment

The self-employment tax (15.3%) must be paid by self-employed individuals. The Social Security tax is comprised of Medicare (2.9%) and Social Security taxes (1%). If you are a W-2 employee, your employer pays half of the Social Security taxes (7.65%) due, which acts as a disincentive to self-employment as a whole. To combat this, the IRS allows you to adjust your gross income by half of your self-employment tax. Make sure you claim this deduction. If you are using TurboTax, ItsDeductible or another software program, it should deduct it for you, but double-check it because these software programs are not flawless.

 Health Insurance Deductions

This is an above-line tax deduction in the sense that you can reduce your income tax with this but not your self-employment tax. If you paid for your health insurance yourself, you will be able to deduct those premiums as long as you were not able to participate in a W-2 employee or group health plan (like your spouse’s). Again, to figure out your allowable deduction, you need to take your self-employment income and deduct 50% of your self-employment tax (discussed above), as well as any IRA contributions, and what is left is your allowable deduction. In other words, if after the calculations you made only $2,500 but your total yearly premium cost was $3,000, you can only deduct $2,500. You would claim this deduction on your 1040 (line 29).

Retirement Plan Deduction

Home Office Tax Deduction

If you work from home and you have an office that you solely and regularly use for business, you can take this deduction. This deduction is applicable whether you rent or have a mortgage. This deduction would be applicable to rent, your mortgage, property taxes (if applicable), home insurance and utilities. Take the percentage of total square feet your office or workspace represents and apply it to the expenses formerly mentioned. Use caution here because this deduction has a tendency to trigger audits, so be prepared to provide proof as to why you took this deduction. Moreover, make sure that your total home office deduction is not more than your total income. Your deduction is limited by what your income was from your business.

Phone Number and Internet Access

If you utilize your internet and phone for business, you can typically factor these in as business expenses. However, if you utilize your internet for personal use 10% of the time, then you would deduct 90% of your monthly internet costs. The same goes for your cell phone or business phone.

Capital Expenditure Deductions

Office equipment you use to run your business (e.g. computer, fax, printer, etc.) normally is depreciated over time, but there is a small business tax deduction you can take advantage of which will allow you to deduct up to $250,000 a year in equipment.

Meals and Entertainment Deductions

You can deduct up to 50% of meals and entertainment as long as these expenses were incurred for business purposes. It is a good idea here to keep a record of what you spent, when and why in case you are ever audited.

Travel Expense Deductions

You can deduct the full cost of traveling (so long as you traveled out of town). For any trip that included staying overnight, you can deduct the hotel cost as well. Remember, any meals or entertainment involved with that out of town trip can only be deducted by 50%.

Educational Online Memberships or Publications

If you subscribe to a trade journal or membership site in order to improve your business, you can deduct these expenses.

1099 is better than W2 for middle class Americans

Many corporations have to find ways to save on taxes. Working Americans can also find ways to save on taxes. Have your own business and/or use 1099 instead of W2.

Apple is an example of a smart company. We thank Apple for the many jobs it created. We should encourage more enterpreneurs and job creation business.  We should upgrade our educational system to incorporate important job skills sets for the global and technical workforce to be competitive. We have to learn another language, learn computer data analysis, and learn new technologies.

As a parent of two young adults in college, I cannot influence my children to be a doctor or software computer engineers. I can only hope that they have goals and ambitions to compel them to strive for the better.  I can show them the standard of living in other developing countries.  I am happy that they wanted to pursue their passions, be an art teacher and an environmental engineer and that they are working students, saving money anyway they can. In other countries, there is not enough opportunities for internships and college students to work part time.  In Canada, there is 4 months of college days and 4 months of internships. In India, the BS in Computer Science and MS in Computer Science can be completed in less years compared to other countries.

————Apple’s Taxes for its business in Ireland———–

FACT CHECK The European Commission makes clear, and tax experts agree, that Ireland let Apple determine how much of the income that it generated in the country would be recognized and taxed there.

The rest of Apple’s income that was not recognized and taxed in Ireland could be put in other corporate structures that were effectively stateless. That meant the money in those structures was not taxable anywhere — not even in Ireland — and thus not subject to Ireland’s 12.5 percent tax rate.

While other companies have also had the right to negotiate with Ireland, the commission considers these sorts of loopholes a no-no.

“In the U.S., states can fall all over themselves to offer subsidies and loopholes, but that is exactly what is illegal in Europe,” said Edward D. Kleinbard, professor at the Gould School of Law at the University of Southern California and a former chief of staff to the congressional Joint Committee on Taxation.

In the United States, politicians, lawmakers and officials have derided “inversion deals,” which allow an American company to move its headquarters overseas to cut its tax bills. In Ireland, they are celebrating them.

The Irish government on Tuesday revised the country’s economic growth rate in 2015 to 26.3 percent from a preliminary estimate of 7.8 percent. While Ireland’s economy has been on the upswing since the country repaid its bailout, it wasn’t that the Celtic Tiger suddenly came roaring back in an unexpected way. Rather, it was the magic of those inversion deals and other sleights of finance.

Under a typical inversion deal, a United States company takes over a foreign counterpart and, in the process, shifts its headquarters overseas. The takeover targets for such deals are typically based in countries with low corporate taxes — like Ireland, with its 12.5 percent rate.

The combined company’s global profits are then reported in its new home base, regardless of where they are earned. In essence, Ireland’s G.D.P. is artificially inflated.

Inversions have drawn the ire of the Obama administration, since they put a greater burden on American taxpayers.

Last year, the medical device maker Medtronic bought its rival Covidien, reincorporating in Ireland. More recently, Johnson Controls of Milwaukeeagreed to join up with Tyco of Cork, Ireland. (Tyco itself has hopped from locale to locale, having been in Bermuda, then Switzerland, before ending up in Ireland.)

USA Rich and poor tax payers, 2010

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Middle income and families

Middle income and couples contributed more in taxes compared to other income groups. Free education, housing support, child care support, health care access and other family-centered and middle-income centered benefits should be given more to this income group.

From these income groups, more than half of the monthly income goes to housing expense.

2010 Tax Statistics in the USA

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More women between the ages of  55 under 60 yrs of age worked in 2010 compared to the number of men in the same age group.

In both men and women, the top earning age group is between the ages of 46 under 55 yrs of age. Disparity in income between men and women is almost double in favor of men.

738k men are still working past age 76 yrs of age and contributed to about $7M in taxes.