Tax Lawyer Q&A: Secrets To Saving Thousands In Taxes...

And you're getting a bad deal.

That's just my quick opinion on that. I want to go into business with someone that wants to make money with me, not make money from me. And you got to be very careful when you're looking at partnership structures and deals and opportunities to understand quickly. Is this person just trying to make money off of me?

I don't even know if you need this partner.

Do I need to file this BOI report right now? You don't.

I will pay this tax all day long, every day and on Sunday because I've seen so many clients afraid of the tax. This tax is worth it.

Foreign welcome everyone to the Main Street Business Podcast. This is Matt Sorenson, joined by the incredible Mark J. Kohler.

Thank you so much. And right on the heels of our amazing live broadcast.

Yeah, we had a live podcast. It was incredible. Tax and legal360. Amazing audience, a lot of tax legal professionals, people leveling up their tax and legal knowledge from the goat. Mark J. Kohler.

Well, we had 20 plus speakers, classes, breakout sessions. It was sold out. We've announced the next one for june, tax and legal360.com so check it out folks. But at that, if you haven't listened to that podcast, it was a good one about the life insurance versus Roth ira. Very, very contentious, debated topic out there on the web.

We knew we were gonna piss off at least somebody in that conversation. So that's what we did.

Oh wow. Crazy. Well, I'm excited to be here with you today. And we're it's open forum so we've got a bunch of questions that have come in in the last week or two. It's year end tax planning. And so even though we did an open forum just two, maybe three sessions ago, maybe even it was just two ago, we've got so many questions here. We wanted to hit these. We're going to keep it tight today. Kind of rapid fire, see if we can answer these quickly. You've got one ready to go it sounds like.

Yeah, let's go. We got this from Alyss12 and this is in the retirement planning category. This is the Lane I love. She says. I've been listening to your episodes about the mega backdoor Roth ira. I'm going to come back and correct some things here. Are there brokerages that offer the self employed 401k plus after tax contribution plus rollover options? I have self employed 401k through fidelity but they told me their system does not allow does not offer after tax contributions, let alone a rollover option afterwards, I would have to get third party amendment to manage my account through Fidelity. And I do not know where to start to find one that will work for me. Okay, a list 12. Great question. When you say mega backdoor Roth IRA, you're confusing two things. There's a mega Roth 401K and there's a backdoor Roth IRA. And so the mega backdoor 401K is where you do make an after tax contribution to a solo K. This could be to a regular 401k at your day job or corporate America. Now I'll tell you where you can get it. And I already know the problem is Fidelity is not doing it for you. You can do it at Directed Directed Trust Company Directed IRA. We have a solo 401k you can use. You can make after tax contributions and you can put it in stocks, bonds and mutual funds if you want. You can put it in real estate, crypto, whatever assets you want. But so you have those options. I think a lot of people that are brand new to this, but they might not have a real estate deal or a private fund or crypto they're interested in. So they just want to do some stocks. You can do that here. So, and we know what that is. You can make that after tax contribution in the solo K. Now here's why it doesn't work at someone like Fidelity. If you did the solo 401k at Fidelity, their plan docs don't allow. It's not because you can't do it at Fidelity. It's because the plan documents of Fidelity that were free don't let you do it there. Now I do have clients that do this at Fidelity, but they have KQS lawyers. Our law firm set up their solo 401k docs that can allow for an after tax contribution. And they go and they set up a investment only account at Fidelity. They're not on fidelity solo 401k docs. It's basically just a brokerage account of Fidelity for your solo K. And so, and Fidelity is not tracking what's coming in or out because you're not on their docs. You're on our docs at the law firm. So now this is an advanced strategy and a list. This is not like you get to like, you know, just push the easy button doing advanced strategies like this. So this is where you might need some coordination with your advisor, your lawyer, or work the company that knows what the heck this is.

Wow, that was rapid fire.

We never said rapid fire.

I did at the beginning.

We're going rapid fire. You were waiting just to say that. I could see you were like, I was like, oh my gosh, when's he gonna stop? This is a complex question.

Yeah, it was, it was. And we've got another one here from J Farm 3021. We're still in this self directing realm which is so powerful. And we've got our other podcast, the self directed, I'm sorry, the directed IRA podcast. Please get over there. If you're in this, if you're asking questions here about directed directing, your Ira, you need to be over on that podcast full time because it's going to help you out a ton as well. Okay. So Jay Farms says, I opened a solo 401k. He's got 150 grand in. I'm truncating the question here. It's a little long. He did a short term rental webinar with Jay Massey and he wants to go buy a short term rental. That's great. He has a partner and my friend wants to own the property in his name because he doesn't have a self directed account. The purchase price will be 300 grand. We're going to go 50, 50. I'll put in 150k for my solo 401k. Can we get a traditional loan for the remaining balance? I'm sorry, what's your partner doing? You're putting in 150 grand and you're going to go get a loan, but you're going to split this 50, 50 with your partner. So I've already got some concerns big time just on that relationship. Cash is king. When you put in the down payment to the point of a 50% down payment and then you're going to give away 50% ownership to someone that is not already offering to get the loan in their name or. And then they're going to manage it and trust me, they're want to get going to get. Want to get paid for managing it, Joe. Okay, so the question is I cannot. Joe cannot. He says, can I self deal or work on the property since my 401k owns it? No. However, since my friend owns it in his personal name, would he be able to manage the property and work on the property? Yes, that's the easy part. The problem is, Joe, this partnership is. I've done my 10,000 consults on this. Joe. We've seen these types of partnerships break down very, very quickly because of the inequitable nature of them. So you've got to have a really, really clear, well, Mark he's going to do all the work. Really? I'll do all the work. I've got an Airbnb. I'll do all the work. Because you're going to be paying Airbnb 3% for managing this. If you're really managing an Airbnb well, you're spending one hour a week managing that. You're going to outsource the cleaning, you're going to outsource this, that. What's this guy doing for 50% ownership? And yes, you can get a non. You can get a traditional loan guaranteed by your friend, but this has also got to be in an LLC. This cannot be in your friend's name with your 401 putting down the money. I mean, Joe, this is like. So please get a consultation with one of our tax lawyers. All of them can do a consult on this topic of self directing your 401k in an LLC with a partner and design a proper partnership relationship. And know that this property is going to have to be held by an LLC and you're going to be able to get a non recourse loan with your 150. I don't even know if you need this partner. Holy crap. Go listen to some of my podcasts on short term rentals. I love this topic. Daniel Rustein, the best selling author on managing short term rentals, has been on our podcast twice. He's fantastic. Do some homework. Joe. I think you've got a lot of opportunity here, but you're headed in the wrong direction a little bit.

Okay, Love that. Joe. Yes. You need help. Joe. That is a, that is a classic situation that I think you're on the wrong end of getting and you're getting a bad deal. That's just my quick opinion on that. And so. But you might just get someone that could manage the rental for you as a partner and or as a property manager. Just takes 10% of the revenue. They're not getting 10% of the ownership or equity. They're just getting a 10% of the revenue coming in on that or maybe even net income. There's different ways to structure that. So just be careful on that. Definitely get the consult. And this is for anybody doing partnerships. This is where it gets really tricky is I want to go into business with someone that wants to make money with me, not make money from me. And you got to be very careful when you're looking at partnership structures and deals and opportunities to understand quickly, is this person just trying to make money off of me? Are they trying to make money with me? I like. Very different.

Very good.

All right, let's look. We got a question here from Quadrant. Quadrant. Quadrant. Okay, Quadrant. Sorry, Quadrant.

I don't think it's spelled properly anyway.

Okay, so.

Oh, my gosh.

No, it's good. All right, quadrant D. The D at the end says if someone has a very large traditional Iraq coming from an old 401k rolled over. Wish I had found you before I did that. Which makes sense. Chunking a non starter. Okay, sounds like you listened to us enough, Quadrant. You knew where we were going to go. Non starter. What are the alternative options? Can I roll the traditional IRA to a solo K, hence making traditional IRA balances 0, allowing for traditional IRA to Roth IRA backdoor rollover with no tax impact? Yes, Quadrant, that is exactly what you can do when you do the backdoor Roth ira. And this is what the question Quadrant is trying to get at. When you do the backdoor Roth ira, which, by the way, is a strategy. If you're making more like 160k single, 220 or so married, you can't just make a regular Roth IRA contribution of 7,000 bucks, but you can still do Roth IRA using the backdoor Roth IRA. You make a 7,000 non deductible traditional contribution, and then you convert that over to a Roth ira. The snag for some people, which was Quadrant's issue here, is when you make that conversion from non deductible traditional to Roth, the IRS says, do you have other traditional IRA contributions that you took a tax deduction on? If you do, you need to convert those pro rata with this $7,000 Roth IRA, which kind of makes the backdoor Roth IRA really tricky. Basically, if you have traditional IRA dollars. So Quadrant's trying to figure out, how do I get around this? Well, the solution is in the question he had, which is if you can do a solo K, you got a side hustle, Something we can justify a business legitimately. Let's do a solo 401k transfer over. Roll over your traditional IRA dollars to the traditional solo K account. No tax, not converting. It's still saying traditional dollars. Now it's in a solo K. Now you can do the backdoor Roth ira, because when you're converting traditional to Roth and the backdoor Roth IRA at an IRA level, they don't look at what's in a 401k. They only care about your traditional IRA dollars. So that would be an excellent workaround. We recommend that for a lot of clients. Great question, Quadrant.

Yeah, love it. All right, so I'm going to jump back to it. I was trying to see if I could get a very real authoritative answer on this, but I'd rather try to address it rather than skip it. And that's the Opportunity Zone question by Beasley Love your show. Thank you for your passion and your content. So put this under the passion. We'll see if it falls under content he said regarding the 10 year tax free hold on investments in an Opportunity Zone, does the initial equity infusion only come from the deferred capital gains? Said another way, Must an investor have capital gains to defer and place in a fund or can he or she invest in this fund and take advantage of the 10 year tax free capital gains using money set aside for investing that did not stem from a capital gain? My understanding, man, I was just trying to confirm if I could say 100% but I'm really close to saying because here's where it's weird. Some people might have capital gain and they have personal money. So they put that all into the Opportunity zone together. The 10 year tax free treatment after you held that property 10 years is for the for the investor taking the initiative to invest in this zone. So whether it came from capital gain money or your personal money, you're investing in this property to help redevelop this area, this Opportunity Zone fund created area. And so you're going to get that 10 year benefit no matter where the money came from. If you hold the property 10 years, the capital gain deferral is a shorter period of time where there's some reduction in capital gain and it's deferred for a little while. We're hoping to see this revisited under the Trump administration and extended. It's really on the tail end of a law that was passed, gosh, eight, nine years ago that really needs to get updated. So my understanding is you can get that same 10 year benefit whether it's personal or capital gain, property or gain funds. But keep researching on that. I am so sorry. I went to my authority on it and I couldn't get a quick answer for the show, but I think you're on the right track.

All right, awesome. Well, I had a question on my social media about the Corporate Transparency Act. There's been a ton of news on this. I put out some videos and content on this. Mark announced it at tax and legal360 from the stage. Last week a federal district court judge in Texas ruled the Corporate Transparency act unconstitutional and said FinCEN is enjoined with a temporary injunction, which is an order a court order from enforcing the BOI requirement. This was the requirement that said if you're an LLC or corporation, you had to file this BOI report with the federal government saying who owned 25% or more or had control of the LLC. Well, a federal district court judge ruled it unconstitutional. Now, this is a big deal because this was different from the Alabama case and some other cases. It was like six months ago where a court ruled this act unconstitutional, but said only for the plaintiffs in this case that their ruling didn't apply to anyone else, just the plaintiffs in the case. Well, the Texas case is totally different. The judge said this is a facial challenge to the Corporate Transparency act and this BOI requirement and said it is unconstitutional on its face, meaning no matter what facts are applied to it, it's unconstitutional. In other words, it applies to everyone. So what has happened since that time? And just bringing everyone up to date on this, because it gets to the question is, FinCEN has finally responded. And this was, I think, on Friday or Saturday of last week. And they said, hey,

there's a court

order in Texas that says that struck down the Corporate Transparency act. And it's a temporary order, so you don't have to comply with this anymore, but you can still voluntarily file. This is on FinCEN's website when you go to file the BOI. There's a big notice up there telling everyone this as they should have said. So where is it standing right now? And the question is, should I file? And this is the question I got from a very successful real estate operator. Done a billion dollars in transactions. Okay, seriously, my other attorneys have told me, let's just file it out of an abundance of caution. And I get that approach because the question is, should I file? Bois, what if I'm setting up an LLC now? What about my 10, 20 LLCs or 2 or 3, whatever it is that I've set up over the last 10, 20 years, do I need to file this BOI report right now? You don't.

There's not a legal requirement.

That is the current law right now, if you asked us two weeks ago, we'd be like, yes, you have to file it. There's no excuse. There's a $500 plus a day penalty and two years jail time if you don't do it. We filed thousands of these for our clients because you had to. Now you don't have to. You can voluntarily file if you want. Now, I think the really important question is what's going to happen is, well, the federal government says they're going to appeal this. Department of treasury and FinCEN, Department of Justice represents them, says they're going to appeal this court's ruling. It's going to go through the appellate court process. It may make its way all the way up to the U.S. supreme Court. That could take a year. This could get expedited. Nobody frickin knows right now. Okay. It's all speculation where this is going to land. But one thing we do know is that Donald Trump's going to be inaugurated president in January. I don't know that a Department of Government efficiency under Donald Trump is going to be that excited about enforcing the Corporate Transparency act, which had a lot of speculation about whether the benefit of curbing money laundering and drug trafficking, which is they believe happens in these LLCs and corporations that the government doesn't know what it is, is that benefit of curbing that worth all the cost to small business that's gonna have to go to comply with this. So we'll see how that shakes out. If I was a betting man, I would say, eh, I think the Department of Justice under President Trump is going to say we don't really care about this. Let's hold back the appeals, let's let this Texas court ruling lie. And I don't know that they're going to be pushing to enforce this. That's my, that's my guess. That's speculation. Now we are filing it for some clients that say, you know what, I just want to be done with it. I don't want to worry about it. File it.

Cool.

We're filing it for those clients and we're handling it. But you don't have to. So I probably wouldn't do it if it was me.

No, no. Okay. Yeah, short answer. Don't worry about it until further notice.

So stay tuned to the podcast. Yeah.

Okay, so the next question is a good one here. Nash Chr2 asked about the retroactive S election or when you're taking an LLC and turning it into an S corp. Now this is a very timely issue this time of year because, because any of your clients or yourself where you made money in an LLC and you're looking down the barrel at self employment tax again or for the first time let's retroactively make that AN S Corp. 1124, pick up some payroll here in the next six weeks. 941 is filed in January, you're off to the races. We're good. So with that said, we have always filed Form 8832 with 2553. It's saying, My LLC wants to be taxed as a corporation. And then 30, you know, three seconds later, because it's attached to the 2553, we say, and we want to be taxed as an S corp. It's kind of a two step process. Well, this listener says, thanks so much for the insights. Love your show. He's a cpa. And Chris says, the tax advisor, a very reputable tax publication, says, well, you don't have to do the 8832. The LLC is eligible under reg, whatever. Da da da da da. Well, I agree. It can be argued either way. Is the 8832 necessary? Is it superfluous? Whatever. We just have always taken the approach. It's easy. It's one freaking page. It's one. Check the box. It's the check the box reg and we attach it to the 2553. We choose the right effective date, we're done. And so we've really felt that it's just easier going that way rather than having to argue, oh, we don't need to file it. I'd rather just file it and throw it in with the mix. So the IRS gets the kitchen sink and we're fine. And we choose the effective date of the 8832 becoming a corporation and the effective date of the S election, which we can back date. And we're going to include a revenue rule and a letter all in a nice little pretty package so that it doesn't get rejected by the IRS. We charge 250 bucks. It's not that hard. It just has to be done right. And that's where people try to do it on their own and gets jacked up and didn't want to pay $250. But it's a trick. We've really fine tuned it. So I say, Kris, file it. What's it going to hurt? I may technically agree under this one specific reg, you don't have to. But then why do I want to find that nuance and hang my hat on it? So thank you so much for the question.

All right. Awesome. Well, this question came in from tomzy99 says per IRS publication 463, this is when you always know it's going to be an exciting question. It says that if you have an office in your home that qualifies as a principal place of business, you can deduct your daily transportation costs between your home and and another work location. So does this mean you can deduct your commuting miles if you have A home office. What is your take? Thank you.

She had to use the C word.

I know. She had a swear word there. Commuting miles. Kate Tanzi. Those aren't commuting miles. Those are business miles. Now I want to give a couple examples here to make sure everyone understands where this hits.

You could be commuting. We don't know what you're doing here.

Let's say, for example, you're a contractor and you do have a home office. That's your regular place of work of home office where you conduct business out of that is your frickin office. And you're driving to a job site from that workspace to your job site. Those are business miles. Let's say on the other hand, you're a dentist with a dental office and you do have an administrative office that you take a home office deduction for at your house, which you can legitimately do. And you have your dental office at a dental location where you are actually seeing patients and where you're doing the work that drive from your home office administrative office, but it's not your real principal workplace to the dental office where you're drilling and billing clients. That's commuting miles. That's not going to be deductible. I don't know if you agree with those two examples there, but I think you got to focus on what the publication says here. Is that home office your principal place of business? Okay, so let's give me another example. I'll shake myself. I can take a home office deduction for my home office at my house if I'm driving to my office here, which is really the principal place of business where I see customers, my team and everything. Those are commuting miles.

Love it. Totally agree. So we'll just. Yeah, yeah, I'll take roll with it. Yeah, yeah. Mark J. Kohler, approved. Oh my gosh. Okay, well, I'm going to just take one more question here. We're keeping this show tight today with just hitting some quickies that have come in. This is says I am the trustee from Obi Wan. Trustee. Ooh, nice little Star wars throwback. I'm the trustee over my siblings, three children's trusts. Okay, so it sounds like a grandpa. I have three children, my siblings. Oh my. He's an uncle here. So I'm the trustee over my siblings. Three children trust. So his three nieces or nephews. My sibling passed away seven years ago. One child is a minor and that child's trust is one of two that receives monthly income from the Sibling's pension which they both will receive until their death. The oldest child receives their portion of the pension outside their trust. Due to the high tax amount for trusts, the youngest is paying $5,000 in taxes each year because that child doesn't take distributions. The middle child takes enough distributions to pay for college to cause enough write offs for their trust to be to have no tax paid. Would you suggest real estate or something else that would create write offs so that the youngest child could avoid the huge tax bill. Each year there was enough to pay cash for a small rental. This child would need money for college in about five years. Okay, now everybody, let me put this in context. This wonderful uncle is now the trustee of his sister's trust for her three kids. She passed away. Just putting some additional names on this so it's a little easier to understand. So brother is managing the trust of the sister that passed away and their three kids. When sister passed away, the trust becomes irrevocable, meaning she puts some provisions in there that these kids don't get the money outright. Uncle's got to divvy it out. So he's going to be investing this trust, growing it and distributing money according to the rules of the trust, which we love. Maybe they get money for college, they get a distribution at age 25 or 30, maybe to get married, buy a house, who knows? Well, when you take a distribution from the trust, that's like a deduction for the trust. So with this middle child, they're going to college right now. So there's income in the trust. They take a distribution, the kid pays tax, it's all good. There's. So the trust is not paying a special tax because the kids allowed to take some money out. But this youngest one is probably in high school or younger, doesn't need distributions or isn't entitled to them. In fact they said college in five years, so they're a teenager. And so what happens is that money stays in the trust. Well, when it stays in the trust, you've got to pay a trust tax bill now. Oh, everybody be careful because what you're going to say is, well, I don't want my kid to pay taxes or I don't, you know, la la la. Well then that means you got to give them money. See the trust is, you're saying, well I'm going to invest inside the trust to create more write offs like depreciation and all that. I think you're chasing your tail there to create write offs for trust income and then you've got to bifurcate it with the other two kids. I think that'd be very, very difficult to accomplish. But what you're pissed about is we're paying this trust tax. I will pay this trust tax day long, every day and on Sunday. And here's why. Because I've seen so many clients afraid of the trust paying tax and not giving kids money when they're under age 18 because this tax would take effect and they're like, I don't want that. So they just give the money to the kids. And now you've got an 18 year old that's going to have a big chunk of money chopped in their lap. It's going to jack up their life forever. And I mean that because you don't want to pay some trust taxes. This tax is worth. It is expensive, yes, but what's the alternative? It's chasing your tail with some weird investment that's going to be a pain in the butt. Or you distribute the money to the kid, which you're not supposed to, and they blow it. I'd rather pay the tax bill and give the kid the money when they're supposed to get it in the right way. That's why it's there. That same trust exists for my kids and I'm okay with it because I'm protecting the kid from hurting themselves. And yeah, there's a tax cost to it, but it's better than just giving them money.

That was freaking awesome. Love that. Love that. Now keep in mind, everybody, this trust tax is only on the income from the trust. All right? It's like we invested in things. I don't know what's invested in, but it's on the income in the trust. So it's not like it's depleting the original amount that was left set aside for this child. That's still a minor.

That.

Okay, that's still staying intact. But it is a pretty high tax rate. It is the highest tax rate in the federal tax code, but it's only on the income that may be happening in the trust, which we want to do. We want to invest that money and grow it so it's at least keeping up with inflation and other things like that. Because we do want to use this trust to benefit this child when they hit college or they want to start a business or get married or whatever the provisions that are in that trust to help take care of that child

as they get older.

But love that. Great advice there.

Yeah. All right, well, you have the final question or you're just going to give everybody a charge to be better live on.

I'll just give you the charge. You know, go live. Go live your dream. No, but this is a really busy time of year. I think it's a great opportunity to look at your tax and legal situation. This is the time to save. If you want to save on taxes right now, this is the, this is tax planning time. It's not April 15, so get organized right now. And also let's shut down and do some cleanup of entities you don't need anymore. Let's close them out before year end. Let's not let them go into the next year. We got to do another renewal or another tax. Turn on an entity you're not using. I had a lot of clients that are doing a little bit of cleanup right now just to clean up entities and stuff that they're not using.

Well, thanks everybody for listening. We'll see you next week for another episode of the Main Street Business Podcast. Lots of IRA questions here, so get over to the directed IRA podcast as well and you're going to find a lot of help there in those self directed topics. Thanks everyone.