How to Protect Yourself Against Coronavirus-Related Fraud

The Internal Revenue Service and other government agencies have noted a rise in scams and other fraudulent activities surrounding the COVID-19 crisis. There are individuals and groups, both in the United States and in countries across the world, who are attempting to take advantage of unwitting taxpayers and business owners. Let’s take a look at what you should look out for as you navigate the current environment.

Economic Impact Payments

While many Americans may have already received their economic impact payment (sometimes called stimulus checks), there are still some citizens awaiting their payments, and fraudsters are using a variety of methods to scam people out of their payment. If you receive a phone call, text, or email from an individual asking you to verify your personal information in order to receive your stimulus check, you’re most likely being scammed. Individuals eligible to receive an economic impact payment do not need to take any action in order to receive their payment.

Targeting Tax Refunds

Taxpayers have experienced numerous scams and illegal actions which target intercepting a tax refund owed to a taxpayer, or in some cases, fraudulently creating tax returns with a taxpayers’ personal information. These scams are numerous and come in a variety of forms.

One standard scheme involves filing a fraudulent tax return on behalf of an unsuspecting taxpayer. When the refund is deposited into the taxpayer’s bank account, the fraudster contacts the taxpayer impersonating an IRS representative. The fake IRS representative advises the taxpayer that the refund has been deposited in error and encourages them to purchase gift cards to restore the balance to the IRS. When the actual IRS representatives eventually discover the scam, the taxpayer is responsible for repaying the funds a second time.

Another frequent scam involves the scammer creating fraudulent tax returns using a taxpayer’s personal information. In this case, the fraudster uses their own deposit information as a way to intercept the refund.

If you are expecting a tax refund or receive a deposit from the IRS that you do not recognize, you should reach out directly to the IRS to confirm your status or to receive instructions on the next steps.

Fake Charities and Investment Opportunities

The IRS has advised that people are setting up charities purported to be for the benefit of those impacted by the COVID-19 virus.

Also, some individuals are maintaining that they represent companies who are working on a vaccine to combat the virus. They offer to allow you to invest in their companies and receive a significant return on your investment once the vaccine is ready.

What Should You Do?

If you think that you may have been the victim of a COVID-19 related scam, you are encouraged to file a report with the appropriate government authorities.

The National Center of Disaster Fraud has a complaint form on its website where you can voice your concerns. You can also call 866-720-5721 to speak with one of their representatives.

The Treasury Inspector General for Tax Administration is also available to receive complaints related to the theft of your economic impact payment.

Finally, if you are the subject of a phishing scam, where fraudsters are seeking to gain your personal information, you should alert the Internal Revenue Service at their email address.

It is important to stay vigilant against those seeking to steal your hard-earned money or personal information during this troubling time. If you have any questions about COVID-19 related fraudulent schemes, or you would like more information, please contact us.

A Novel Way to Make COVID-19 Relief Donations

Article Highlights:

  • Donating unused vacation time, sick leave and personal time
  • Employer’s Function
  • Great Donation Opportunity

On March 13, 2020, the President issued an emergency disaster declaration under the Stafford Act as a result of the coronavirus pandemic. The disaster area covers all 50 states, the District of Columbia, and five U.S. Territories. As a result, and as was done in the past in the wake of major disasters, including Hurricanes Katrina, Sandy, Harvey and Maria, the IRS is providing special relief that allows employees to donate their unused paid vacation, sick leave, and personal leave time to COVID-19 relief efforts.

Here is how it works: if your employer is participating, you can relinquish any available and paid vacation time, sick leave, and personal leave for cash payments, which your employer will donate to COVID-19 relief charitable organizations. The cash payment will not be treated as wages to you, and your employer can deduct the amount given as a business expense. However, since the income isn’t taxable to you, you will not be allowed to claim the donation as a charitable deduction on your tax return. Even so, excluding income is often worth more as tax savings than a potential tax deduction, especially if you generally claim the standard deduction* or you are subject to AGI-based limitations.

This particular relief applies to all donations made before January 1, 2021, giving individuals plenty of time to forgo their unused paid vacation, sick and leave time and have the cash value donated to a worthy cause.

This is an excellent opportunity to provide sorely needed help in the ongoing COVID-19 emergency without costing you anything but time. Contact your employer to donate. If your employer is unaware of this program, refer them to IRS Notice 2020-46 for further details.

If you have questions related to donating leave time for COVID-19 relief efforts or other charitable contributions, please contact us.


*Normally, charitable contributions are deductible only if you itemize your deductions on Schedule A as part of your 1040 return. This means you wouldn’t get a tax benefit from your donations if you claim the standard deduction instead of itemizing. However, the CARES Act, passed in late March 2020, allows up to $300 of cash charitable contributions made in 2020 to be deducted from your income even if you use the standard deduction. Of course, as noted above, you can’t deduct the value of COVID-19 relief donations made through leave-based donation programs in any case. Instead, the leave time is non-taxable.

NYC and U.S. Small Business Administration Disaster Loan Assistance Update

Tarlow is in contact with NYC Small Business Services and other regulators to remain updated and understand how state and local responses to COVID-19, such as shutdowns or restrictions, may affect small businesses. We wanted to ensure you knew that there is potential help from both New York City and the federal government.
NYC has the following two programs available:
  • For businesses with fewer than 100 employees who have seen a sales decrease of 25% or more, there is the potential for a zero-interest loan of up to $75,000.
  • For small businesses with fewer than 5 employees, a grant may be available to cover 40% of payroll costs for two months to help retain employees.
The federal government Small Business Administration loan assistance program includes:
Tarlow Partners and staff members are available to work with you on both of these programs to help you get the financial assistance you need during this difficult time.  We are also available to consult with you on all items related to contingency planning during this time. Please remember to use our Client Portal and do not hesitate to contact us if we can be of assistance, whether it is related to the COVID-19 situation or otherwise.

Tarlow:  Here for You and Doing Our Part to Stop the Spread of COVID-19

At Tarlow, we are closely monitoring the CDC’s developments regarding the spread and impact of COVID-19. Our Firm is working within the CDC’s recommended guidelines, and the guidelines of health departments in the regions in which we operate.

Although our offices are currently closed, we are open for business and are here to help.  All Tarlow Partners and professionals are working hard to serve our valued clients.  Please contact us with any questions and if we can assist you.

As COVID-19 affects a growing number of people and businesses around the world, caring for our team members, clients, and the broader community continues to be Tarlow’s top priority.

Caring for Our Team: Like many businesses, we have taken the precaution of closing our office and have implemented accommodations for all Partners and employees to work full-time from home. Over the past weeks, we have been preparing for this possibility to mitigate any interruptions in our client service and will continue working as usual.

Caring for Our Clients: We’re here for you! Tarlow’s team is connected and available to support you and answer your questions. All team members are readily available and welcome your requests to schedule phone calls and web meetings at your convenience.  We’re also in contact with NYC Small Business Services and other regulators to remain updated and understand how state and local responses to COVID-19, such as shutdowns or restrictions, may affect small businesses. Please remember to use our Client Portal and do not hesitate to contact us if we can be of assistance, whether it is related to the COVID-19 situation or otherwise.

Caring for Our Community: We will do all we can to assist the members of our community during this challenging time.  If a situation comes to your attention and you feel we may be able to assist, please do not hesitate to contact us.

We also encourage everyone to do your part to keep yourself and your community safe. You can do so by adhering to these recommendations from the Centers for Disease Control (CDC), and check out these helpful tips for staying connected while working from home.

Improve Your Financial Health with a Healthy Savings Fund

To stay afloat during tough times, financial experts recommend that you keep three to six months’ expenses in a savings account. But, if you are in the majority, you likely only have less than $1,000 in your savings account at any given time. Thankfully, 2020 is here to provide you with a chance to start anew and get your savings in check. Follow the tips below to start building a healthy savings fund and boost the health of your finances.

Build a Budget and Stick to It

To halt excessive spending and channel your money into all the right areas, you need to build a budget and stick to it. Before you can do that, however, you need to see just where all your money is going. You can either use an app that connects to your accounts or write down all your spending for a month.

With that information in hand, you can see where you can cut back your spending and divert the funds into savings instead. You can work your budget on paper or use a software program to help you track your spending.

As you build your budget, try to follow the 50/30/20 rule. By following this rule, you will assign 50% of your take-home income to necessities, 30% on what you want, and 20% for paying down debt and saving. You can tighten up these figures as you wish by pulling out of the “want” category for savings and debt repayment.

To eliminate the urge to spend, consider taking a picture or screenshot of the item you want and waiting at least 24 hours before buying it. Or think about the hours it took you to earn the money you will spend on the purchase. Before you know it, the urge to spend that money may dissipate, leaving more in your bank account at the end of the month.

Switch to a High-Yield Savings Account

The national interest rate for savings accounts has been steadily declining through the decades, landing at just 0.9% at this time. This does not even keep up with the inflation rate of 1.9%, putting you at a loss by the end of each year. To overcome this issue, you can switch to a high-yield savings account.

With interest rates of 1.9% or higher, high-yield accounts keep your money growing at a decent pace. And since many are online, you cannot just head down to your bank for a withdrawal, helping keep your money in savings where it belongs.

Go with Automatic Savings Deductions

Automation makes everything more manageable, and putting money in your savings is no exception. So, set up your account to automatically pull money from checking and put it into savings every month. You will hit your goal without even thinking about it and can adjust upward year to year to maximize your savings.

Gradually Bump Up Retirement Savings

Your high-yield savings account is not the only one in need of love. Your retirement account also needs attention each year to realize its full potential. You can maximize your retirement savings pain-free by increasing your contributions by just 1%. Then, make it a tradition to celebrate the new year with this smart move to keep bolstering your savings for the future.

Additional Fun Ways to Save Big

Once you have your retirement contributions and automatic deposits ticking away, you can continue to increase your savings in fun ways. Here are a few to try throughout the new year.

  • Transfer Leftover Funds to Savings on Payday. Each time you get paid, take whatever was left in your account before the check hit and transfer it to savings. Even if you only have $50 of your check left after expenses, you can end up with more than $600 in savings by the end of the year.
  • Practice No-Spend Months on Occasion. If you can swing it, designate a month or two out of the year as a no-spend month. Then, task yourself with only covering necessities, such as bills, food, and fuel, leaving all wants to the wayside during that time.
  • Sock Away All the $5 Bills You Encounter. Every time you come across a $5 bill, place it in your savings to watch the money grow before your very eyes. If you do not often carry cash, transfer $5 into your savings every time your checking account balance ends on 5 or 0 instead.
  • Round-Up Your Purchases for Savings. Alternatively, you can round up all your purchases and put the change in your account to bump up your balance. Although it is less than a dollar at a time, the difference can add up quickly, giving you several hundred extra dollars in savings each year.

By taking these money-saving steps, you can quickly increase your savings without breaking a sweat. If you need assistance getting started, contact us. When you begin saving, you will marvel at how fast your financial health improves.

Understanding Tax Lingo

Article Highlights

  • Filing status
  • Adjusted gross income (AGI)
  • Taxable income
  • Marginal tax rate
  • Alternative minimum tax (AMT)
  • Tax Credits
  • Underpayment of the estimated tax penalty

When discussing taxes, reading tax-related articles, or interpreting instructions, it’s helpful to understand the lingo and acronyms used by tax professionals. It can be difficult to understand tax strategies if you are not familiar with the basic terminologies used in taxation. The following article provides the necessary details associated with the most frequently encountered tax terms.

Filing Status

Generally, if you are married at the end of the tax year, you have three possible filing status options: married filing jointly, married filing separately, or, if you qualify, head of household. If you were unmarried at the end of the year, you would file as single, unless you are eligible for the more beneficial head of household status. A special status applies to some widows and widowers.

When using the married joint status, the income, deductions, and credits of the spouses are combined for reporting on the tax return. If the spouses file using the married separate status, they each file a separate tax return, and if they reside in a separate property state, each spouse includes just his or her own income and deductions on their individual return. In community property states, generally, the incomes and deductions of the spouses are combined and then split 50%/50% for married separate tax return reporting purposes.

Head of household is the most complicated filing status to qualify for and is frequently overlooked as well as incorrectly claimed. Generally, the taxpayer must be unmarried AND:

  • pay more than one half of the cost of maintaining as his or her home a household that was the principal place of abode for more than one half of the year of a qualifying child or certain dependent relatives, or
  •  pay more than half the cost of maintaining a separate household that was the main home for a dependent parent for the entire year.

A married taxpayer may be considered unmarried for the purpose of qualifying for head of household status if the spouses were separated for at least the last six months of the year, provided the taxpayer maintained a home for a dependent child for over half the year.

Surviving spouse (also referred to as qualifying widow or widower) is a rare status used only for a taxpayer whose spouse died in one of the prior two years and who has a dependent child at home. Joint rates are used. In the year the spouse passes away, the surviving spouse may file jointly with the deceased spouse if not remarried by the end of the year. In rare circumstances, for the year of a spouse’s death, the executor of the decedent’s estate may determine that it is better to use the married separate status on the decedent’s final return. The married separate status would then also require the surviving spouse to use the married separate status for that year.

Adjusted Gross Income (AGI)

 AGI is the acronym for adjusted gross income. AGI is generally the sum of a taxpayer’s income less specific subtractions called adjustments (but before the standard or itemized deductions). The most common adjustments are penalties paid for early withdrawal from a savings account, and deductions for contributing to a traditional IRA or self-employed retirement plan. A taxpayer’s AGI limits many tax benefits and allowances, such as credits, specific adjustments, and some deductions.

Modified AGI (MAGI)

Modified AGI is AGI (described above) adjusted (generally up) by tax-exempt and tax-excludable income. MAGI is a significant term when income thresholds apply to limit various deductions, adjustments, and credits. The definition of MAGI will vary depending on the item that is being limited.

Taxable Income

Taxable income is AGI less deductions (either standard or itemized). For years 2018 through 2025, another item that is subtracted when figuring taxable income is the deduction for qualified business income (generally 20% of qualified income from pass-through businesses such as partnerships, rentals, and sole proprietorships). Your taxable income is what your regular tax is based upon using a tax rate schedule specific to your filing status. The IRS publishes tax tables that are based on the tax rate schedules and that simplify the tax calculation, but the tables can only be used to look up the tax on taxable income up to $99,999.

Marginal Tax Rate (Tax Bracket)

Not all of your income is taxed at the same rate. The amount equal to your standard or itemized deductions is not taxed at all. The next increment is taxed at 10%, then 12%, 22%, etc., until you reach the maximum tax rate, which is currently 37%. When you hear people discussing tax brackets, they are referring to the marginal tax rate. Knowing your marginal rate is important because any increase or decrease in your taxable income will affect your tax at the marginal rate. For example, suppose your marginal rate is 24%, and you are able to reduce your income $1,000 by contributing to a deductible retirement plan. You would save $240 in federal tax ($1,000 x 24%). Your marginal tax bracket depends upon your filing status and taxable income. You can find your marginal tax rate using the table below.

Keep in mind when using this table that the marginal rates are step functions and that the taxable incomes shown in the filing-status column are the top value for that marginal rate range.


Marginal Tax Rate Single Head of Household Joint* Married Filing Separately
10% 9,700 13,850 19,400 9,700
12% 39,475 52,850 78,950 39,475
22% 84,200 84,200 168,400 84,200
24% 160,725 160,700 321,450 160,725
32% 204,100 204,100 408,200 204,100
35% 510,300 510,300 612,350 306,175
37% Over 510,300 Over 510,300 Over 612,350 Over 306,175

*Also used by taxpayers filing as surviving spouse

Capital Gains Tax Rates

Lower tax rates apply for gains upon sale of most property, such as stocks and real estate, held for over one year. These rates are 0%, 15% and 20%. Which rate applies depends on the amount of your taxable income.

Taxpayer & Dependent Exemptions

Before the changes made by the 2017 tax reform, you were allowed to claim a personal exemption for yourself, your spouse (if filing jointly), and each individual qualifying as your dependent. The deductible exemption amount was adjusted for inflation annually; the amount for 2019 is $4,200. However, the tax reform suspended the deduction for exemptions for 2018 through 2025.


To qualify as a dependent, an individual must be the taxpayer’s qualified child or pass all five dependency qualifications: the (1) member of the household or relationship test, (2) gross income test, (3) joint return test, (4) citizenship or residency test, and (5) support test. The gross income test limits the amount a dependent can make if he or she is over 18 and does not qualify for an exception for certain full-time students. The support test generally requires that you pay over half of the dependent’s support. However, there are special rules for divorced parents and situations where several individuals together provide over half of the support.

Qualified Child

A qualified child is one who meets the following tests:

  1. Has the same principal place of abode as the taxpayer for more than half of the tax year except for temporary absences;
  2. Is the taxpayer’s son, daughter, stepson, stepdaughter, brother, sister, stepbrother, stepsister, or a descendant of any such individual;
  3. Is younger than the taxpayer;
  4. Did not provide over half of his or her own support for the tax year;
  5. Is under age 19, or under age 24 in the case of a full-time student, or is permanently and totally disabled (at any age); and
  6. Was unmarried (or if married, either did not file a joint return or filed jointly only as a claim for refund).


A taxpayer generally can choose to itemize deductions or use the standard deduction. The standard deductions, which are adjusted for inflation annually, are illustrated below for 2019.

Filing Status Standard Deduction
Single $12,200
Head of Household $18,350
Married Filing Jointly $24,400
Married Filing Separately $12,200

The standard deduction is increased by multiples of $1,650 for unmarried taxpayers who are over age 64 or blind. For married taxpayers, the additional amount is $1,300. The extra standard deduction amount is not allowed for elderly or blind dependents. Those with significant deductible expenses can itemize their deductions instead of claiming the standard deduction. The standard deduction of a dependent filing his or her return will often be less than the single amount shown above.

Itemized deductions generally include:

  1. Medical expenses which are limited to those that exceed 10% of your AGI for 2019.
  2. Taxes consisting primarily of real property taxes, state income (or sales) tax, and personal property taxes, but limited to a total of $10,000 for the year.
  3. Interest on qualified home acquisition debt and investments; the latter is limited to net investment income (i.e., the deductible interest cannot exceed your investment income after deducting investment expenses).
  4. Charitable contributions, generally limited to 60% of your AGI, but in certain circumstances, the limit can be as little as 20% or 30% of AGI.
  5. Gambling losses to the extent of gambling income, and certain other rarely encountered deductions.

Alternative Minimum Tax (AMT)

The Alternative Minimum Tax is another way of being taxed that has often taken taxpayers by surprise. The Alternative Minimum Tax (AMT) is a tax that was originally intended to ensure that wealthier taxpayers with massive write-offs and tax-sheltered investments pay at least a minimum tax. However, even taxpayers whose only “tax shelter” is having a large number of dependents or paying high state income or property taxes were being affected by the AMT. Your tax must be computed by the regular method and also by the alternative method. The higher tax must be paid. The following are some of the more frequently encountered factors and differences that contribute to making the AMT greater than the regular tax.

  • The standard deduction is not allowed for the AMT, and a person subject to the AMT cannot itemize for AMT purposes unless he or she also itemizes for regular tax purposes. Therefore, it is important to make every effort to itemize if subject to the AMT.
  • Itemized deductions:

Interest in the form of home equity debt interest that cannot be traced to a deductible use. For years 2018–2025, interest paid on home equity debt is also not allowed for regular tax purposes.

  • Nontaxable interest from private activity bonds is tax-free for regular tax purposes, but some is taxable for the AMT.
  • Statutory stock options (incentive stock options), when exercised, produce no income for regular tax purposes. However, the bargain element (the difference between the grant price and exercise price) is income for AMT purposes in the year the option is exercised.
  • Depletion allowance in excess of a taxpayer’s basis in the property is not allowed for AMT purposes.

A certain amount of income is exempt from the AMT, but the AMT exemptions are phased out for higher-income taxpayers.

Filing Status Exemption Amount Income Where Exemption Is Totally Phased Out
Married Filing Jointly $111,700 1,467,400
Married Filing Separate $55,850 $797,100
Unmarried $71,700 $733,700
AMT Taxable Income Tax Rate
0 – $194,800 (1) 26%
Over $194,800 (1) 28%
(1) $97,400 for married taxpayers filing separately

Your tax will be whichever is the higher of the tax computed the regular way and by the Alternative Minimum Tax. Anticipating when the AMT will affect you is difficult because it is usually the result of a combination of circumstances. In addition to those items listed above, watch out for transactions involving limited partnerships, depreciation, and business tax credits only allowed against the regular tax. All of these can powerfully impact your bottom-line tax and raise a question of possible AMT. Fortunately, due to tax reform that the increased AMT exemption amounts and set higher thresholds before the exemption is phased out, fewer taxpayers are now paying AMT. Tax Tip: If you were subject to the AMT in the prior year, you itemized your deductions on your federal return for the prior year, and had a state tax refund for that year, part or all of your state income tax refund from that year may not be taxable in the regular tax computation. To the extent that you received no tax benefit from the state tax deduction because of the AMT, that portion of the refund is not included in the subsequent year’s income.

Tax Credits

Once your tax is computed, tax credits can reduce the tax further. Credits reduce your tax dollar for dollar and are divided into two categories: those that are nonrefundable and can only offset the tax, and those that are refundable. In addition, some credits are not deductible against the AMT, and some credits, when not fully used in a specific tax year, can carry over to succeeding years. Although most credits are a result of some action taken by the taxpayer, there are some commonly encountered credits that are based simply on the number or type of your dependents or your income. These and other popular credit are outlined below.

Child Tax Credit

Thanks to tax reform, the child tax credit has been increased to $2,000 per child (up from $1,000 in 2017). If the credit is not entirely used to offset tax, the excess portion of the credit, up to the amount that the taxpayer’s earned income exceeds a threshold of $2,500, but not more than $1,400, is refundable. The credit begins to phase out at incomes (MAGI) of $400,000 for married joint filers and $200,000 for other filing status. The credit is reduced by $50 for each $1,000 (or fraction of $1,000) of modified AGI over the threshold.

Dependent Credit – A nonrefundable credit is available to taxpayers with a dependent who isn’t a qualifying child, and like the increased child tax credit is designed to offset the loss of the exemption deduction as a result of tax reform. The dependent credit is $500. A qualifying child, the taxpayer, and if married, the spouse are not eligible for this credit. A child who isn’t a qualifying child but who qualifies as a dependent under the dependent relative rules would qualify the taxpayer to claim this credit.

Earned Income Credit

This is a refundable credit for a low-income taxpayer with income from working either as an employee or a self-employed individual. The credit is based on earned income, the taxpayer’s AGI, and the number of qualifying children. A taxpayer who has investment income such as interest and dividends in excess of $3,600 (for 2019) is ineligible for this credit. The credit was established as an incentive for individuals to obtain employment. It increases with the amount of earned income until the maximum credit is achieved and then begins to phase out at higher incomes. The table below illustrates the phase-out ranges for the various combinations of filing status and earned income and the maximum credit available.

Number of Children Joint Return Others Maximum Credit
None $14,450 – $21,370 $8,650 – $15,570 $529
1 $24,820 – $46,884 $19,030 – $41,094 $3,526
2 $24,820 – $52,493 $19,030 – $46,703 $5,828
3 $24,820 – $55,952 $19,030 – $50,162 $6,557

Residential Energy-Efficient Property Credit

This credit is generally for energy-producing systems that harness solar, wind, or geothermal energy, including solar-electric, solar water-heating, fuel-cell, small wind-energy, and geothermal heat-pump systems. These items qualify for a 30% credit with no annual credit limit. Unused residential energy-efficient property credit is generally carried over through 2021. The credit rate reduces to 26% in 2020 and 22% in 2021. The credit expires after 2021.

Withholding and Estimated Taxes

Our “pay-as-you-earn” tax system requires that you make payments of your tax liability evenly throughout the year. If you don’t, it’s possible that you could owe an underpayment penalty. Some taxpayers meet the “pay-as-you-earn” requirements by making quarterly estimated payments. However, when your income is primarily from wages, you usually meet the requirements through wage withholding and rely on your employer’s payroll department to take out the right amount of tax, based on the information shown on the Form W-4 that you filed with your employer. To avoid potential underpayment penalties, you are required to deposit by payroll withholding or estimated tax payments an amount equal to the lesser of:

1) 90% of the current year’s tax liability; or

2) 100% of the prior year’s tax liability or, if your AGI exceeds $150,000 ($75,000 for taxpayers filing as married separate), 110% of the prior year’s tax liability.

If you had a significant change in income during the year, we can assist you in projecting your tax liability to maximize the tax benefit and delay paying as much tax as possible before the filing due date.

Please contact us if we can be of assistance with your tax planning needs.

Will Independent Contractors Become Extinct?

Article Highlights:

  • New California Legislation
  • Employee or Independent Contractor
  • Dynamex
  • ABC Test
  • Impact on Employers
  • Impact on Workers
  • Safe Harbor

The California legislature recently passed landmark labor legislation that essentially makes it very difficult, if not impossible, to legally classify an employee as an independent contractor (self-employed). Governor Newsom was quick to sign it into law, and it generally became effective on January 1, 2020. Many believe this legislation will suppress entrepreneurship and innovation.

Although this issue currently pertains to California, other smaller states are sure to follow, and this will ultimately become an issue for employers nationwide.


The distinction between employee and independent contractor is governed by both federal law and state law. It has always been a complicated issue at both the federal and state levels, and the state and federal guidelines often differ. However, because of the significant payroll tax revenues involved, the states are generally the most aggressive in classifying workers as employees.

In the California case, the legislation was prompted by a labor case that was ultimately settled by the California Supreme Court. In that case, Dynamex Operations West, a trucking company, was treating its drivers as employees. It started classifying them as independent contractors to reduce costs, which caught the eye of the California Employment Development Department and ultimately reached the California Supreme Court. The court determined the drivers were employees and not independent contractors. However, in making that decision, the California Supreme Court adopted the “ABC test” used by some other states to make their determination.

As a result of this decision, the California Legislature passed legislation (AB-5) codifying, with some exceptions, the ABC test for determining whether a worker is an independent contractor.

The ABC Test

Several states, including Massachusetts and New Jersey, have also adopted the “ABC” test. The test is a broad means of determining a worker’s status as either an employee or a contractor by considering three factors. If a worker passes all three, then he or she is an independent contractor:

(A) That the worker is free from the hirer’s control and direction, in connection with the performance of the work, both under the contract for the performance of such work and in fact;

(B) That the worker performs work outside the usual course of the hiring entity’s business; and

(C) That the worker is customarily engaged in an independently established trade, occupation, or business of the same nature as the work performed for the hiring entity.

The objective of the ABC test is to create a more straightforward, clearer test for determining whether a worker is an employee or an independent contractor. It presumes that a worker hired by an entity is an employee and places the burden on the employer to establish that the worker meets the definition of an independent contractor. But California’s AB-5 legislation did not just adopt the ABC test; it also added numerous and complicated exceptions to using the ABC test, which will surely enrich California labor attorneys.

Impacts on Employers

Employers who have been treating a worker as an independent contractor but must treat him or her as an employee must pay at least minimum wage and provide sick time, meal and rest periods, and health insurance. The employer will also have to pay worker’s compensation benefits and health insurance. On top of that, California has severe monetary penalties for misclassifying workers. Impacts on Workers: The impacts on workers vary by occupation. Some workers incur significant amounts of expenses, and under the tax reform, they can no longer deduct employee business expenses on their tax returns. Thus, for example, an Uber driver who must provide the vehicle and pay for the gas, insurance, and upkeep would be unable to deduct these substantial costs of providing the service and would have to pay taxes on his or her gross income.

Large Employers Are Fighting Back

Some larger employers are fighting back and challenging AB-5. Uber and DoorDash have joined forces with some contract drivers to file a suit in the U.S. District Court for Central California, alleging that AB-5 violates individuals’ constitutional rights and unfairly discriminates against technology platforms. The California Trucking Association (CTA) successfully obtained a temporary injunction against AB-5 for CTA drivers by contending that AB-5 is in direct conflict with several federal laws related to motor carriers. Regardless of the outcomes of these cases, they will be appealed, and the ultimate outcome could be months, if not years, away.

This leaves few choices for smaller employers other than to carefully assess the provisions of AB-5 when treating a worker as an independent contractor. For those who are unsure, it might be wise to consult a labor attorney. The safe-harbor option is to treat all workers as employees until all of the legal challenges to AB-5 have run their course.

Please contact us if you have further questions.

Are Solar-Powered Batteries the Answer to Power Outages?

Article Highlights:

  • Wildfires
  • Planned Power Outages
  • Solar Batteries
  • Solar Tax Credit

Over the past few years, several wildfires have been blamed on power lines downed during periods of low humidity and gusty winds, which typically occur in the fall. The 2018 Camp Fire, sparked by downed power lines, was the deadliest in California history, claiming 85 lives and causing more than an estimated $16 billion in damages.

Wind events can last for days, and the loss of power for extended periods can result in spoiled food and other inconveniences for homeowners who lack other power sources. Planned power outages are already being implemented by some utility companies. They may become commonplace in the future, since gusty weather comes every year, and power companies must consider their financial liabilities if a downed line sparks a wildfire.

As a result, homeowners and businesses in fire-prone areas will need to be proactive in planning for these emergency power outages and decide whether they need to provide themselves alternate power sources during outages or ride out the powerless periods. Of course, alternative power sources come with a price tag, which will play into that decision.

Even if you do not live in a wildfire-prone area, you may be in an area that is susceptible to power outages and may want to consider alternative power sources during outages.

Businesses can, of course, write off the cost of providing themselves alternate power sources. Still, the tax law doesn’t allow homeowners to deduct the expenses of a generator or other outage-mitigation measures. However, one tax credit applies to homeowners who install solar power property, and that credit extends to batteries that are charged solely by solar power. (1)

Even if you only have a standard solar power system without a battery back-up, you will still lose power during an outage because of how most panels are connected to the electric grid. However, if you have a battery incorporated into your solar system, your home can run off the solar energy stored in your battery when there is a power outage.

Homeowners who already have a solar installation can add a storage battery and qualify for the solar credit for the cost of the battery. (1) Those who do not already have a solar system may want to consider the cost of installing a solar system with a battery.

Installing a solar system with a battery or adding a battery to an existing system may be a convenience item for some and worth the cost. However, the costs can be substantial, and a household’s energy needs may not justify the price of a solar system, much less the cost of a battery. Carefully consider your needs before deciding whether to invest in a solar system. Although it will not qualify for a solar credit, a battery system attached to the electric grid may be another option.

If you want to take full advantage of the solar tax credit, you need to act soon, as it is being phased out. Note that 2019 is the last year that the credit is equal to 30% of the cost of a solar system. The credit amount drops to 26% in 2020 and 22% in 2021, the final year of the credit. The credit is nonrefundable, which means it can only reduce your tax to zero, and any excess is carried over to the subsequent year. During periods of possible outages, keep your car’s gas tank filled, as service stations can’t pump gas without power. Keep some cash handy, since without power, your credit/debit cards will not work, and ATMs won’t be able to distribute cash. External batteries to charge cell phones will come in handy as well.

If you have questions related to how the solar credit might apply to your particular circumstances, please contact us.

(1) A battery attached to solar panels is qualified solar electric property if it’s charged only by solar energy. A software-management tool is an eligible solar electrical property where the software is necessary to monitor the charging and discharging of solar energy from a battery attached to solar panels. Earlier installations of qualifying property don’t affect the availability of the solar for qualifying property in later years. Thus, where a qualifying solar panel system was installed in Year 1, an additional solar credit could be claimed in Year 2 for the installation of a battery that was connected to the system and was qualified solar electric property. (IRS Letter Ruling 201809003)

Crowdfunding Can Have Unexpected Consequences

Article Highlights:

  • Crowdfunding Sites
  • Gifts
  • Charitable Gifts
  • Business Ventures
  • SEC Registration

Raising money through Internet crowdfunding sites prompts questions about the taxability of the money raised. Several sites host money-raising projects for fees ranging from 5 to 9%, including GoFundMe, Kickstarter, and Indiegogo. Each site specifies its own charges, limitations, and withdrawal processes. Whether the money raised is taxable depends upon the purpose of the fundraising campaign.

Gifts – When an entity raises funds for its own benefit and the contributions are made out of detached generosity (and not because of any moral or legal duty or the incentive of anticipated economic benefit), the contributions are considered tax-free gifts to the recipient.

On the other hand, the contributor is subject to the gift tax rules if he or she contributes more than $15,000 to a particular fundraising effort that benefits one individual; the contributor is then liable to file a gift tax return. Unfortunately, regardless of the need, gifts to individuals are never tax-deductible.

A “gift tax trap” occurs when an individual establishes a crowdfunding account to help someone else in need (whom we’ll call the beneficiary) and takes possession of the funds before passing the money on to the beneficiary. Because the fundraiser takes possession of the funds, the contributions are treated as a tax-free gift to the fundraiser. However, when the fundraiser passes the money on to the beneficiary, the money then is treated as a gift from the fundraiser to the beneficiary; if the amount is over $15,000, the fundraiser is required to file a gift tax return and to reduce his or her lifetime gift and estate tax exemption. Some crowdfunding sites allow the fundraiser to designate a beneficiary so that the beneficiary has direct access to the funds which keeps the fundraiser from encountering any gift tax problems.

Gifts to specific individuals, regardless of the need are not considered a charitable contribution under tax law. An example is raising funds to help pay for someone’s funeral expenses. Another example, which includes a little tax twist, would be raising money to help someone pay for their medical expenses. Because it is a gift, it is not taxable to the recipient, but if the recipient itemizes their deductions, any amount of the gift the recipient spends to pay for their or a spouse’s or dependent’s medical expenses can be included as a medical expense on the recipient’s Schedule A.

Charitable Gifts – Even if the funds are being raised for a qualified charity, the contributors cannot deduct the donations as charitable contributions without proper documentation. Taxpayers cannot deduct cash contributions, regardless of the amount, unless they can document the contributions in one of the following ways:

  • Contribution Less Than $250 – To claim a deduction for a contribution of less than $250, the taxpayer must have a canceled check, a bank or credit card statement, or a letter from the qualified organization; this proof must show the name of the organization, the date of the contribution, and the amount of the contribution.
  • Cash contributions of $250 or More – To claim a deduction for a contribution of $250 or more, the taxpayer must have a written acknowledgment of the contribution from the qualified organization; this acknowledgment must include the following details:
    • The amount of cash contributed;
    • Whether the qualified organization gave the taxpayer goods or services (other than certain token items and membership benefits) as a result of the contribution, along with a description and good-faith estimate of the value of those goods or services (other than intangible religious benefits); and
    • A statement that the only benefit received was an intangible religious benefit, if that was the case.

Thus, if the contributor is to claim a charitable deduction for the cash donation, some means of providing the contributor with a receipt must be provided.

Business Ventures – When raising money for business projects, two issues must be contended with: the taxability of the money raised and the Security and Exchange Commission (SEC) regulations that come into play if the contributor is given an ownership interest in the venture.

  • No Business Ownership Interest Given – This applies when the fundraiser only provides the contributor nominal gifts, such as products from the business, coffee cups, or T-shirts; the money raised is taxable to the fundraiser.
  • Business Ownership Interest Provided – This applies when the fundraiser provides the contributor with partial business ownership in the form of stock or a partnership interest; the money raised is treated as a capital contribution and is not taxable to the fundraiser. The amount contributed becomes the contributor’s tax basis in the investment. When the fundraiser is selling business ownership, the resulting sales must comply with SEC regulations, which generally require any such offering to be registered with the SEC. However, the SEC regulations carve out a special exemption for crowdfunding:
  • Fundraising Maximum – The maximum amount a business can raise without registering its offering with the SEC is $1.07 million in 12 months. Non-U.S. companies, businesses without a business plan, firms that report under the Exchange Act, certain investment companies, and companies that have failed to meet their reporting responsibilities may not participate.
  • Contributor Maximum – The amount an individual can invest through crowdfunding in any 12 months is limited:
  • If the individual’s annual income or net worth is less than $107,000, his or her equity investment through crowdfunding is limited to the greater of $2,200 or 5% of the investor’s annual net worth.
    • If the individual’s annual income or net worth is at least $107,000, his or her investment via crowdfunding is limited to 10% of the investor’s net worth or annual income, whichever is less, up to an aggregate limit of $107,000.

On the bright side, even if the money raised is income to the business, it will probably net out to zero taxable if it is spent on tax-deductible business expenses.

Does the IRS Track Crowdfunding? – The answer is, maybe. It depends on the aggregate number of backers contributing to the fundraising campaign and the total amount of funds processed through third-party transaction companies (credit card, PayPal, etc.). These third-party processors are required to issue a Form 1099-K reporting the gross amount of such transactions. There is a de minimis reporting threshold of $20,000 or 200 reportable transactions per year. The question is, will the third party follow the de minimis rule?

If you have questions about crowdfunding-related tax issues, please contact us

Tax Issues Related to Hobbies

Article Highlights:

  • Hobby Losses
  • Not-for-Profit Rules
  • Determining Factors
  • Trade or Business Presumption
  • Hobby Tax Reporting
  • Self-Employment Tax

Generally, a hobby is an activity an individual enjoys for leisure, and without the goal of making money. A hobby is a way to describe an activity that is not known to create any income. Tax law generally does not allow deductions for personal expenses except those allowed as itemized deductions on the 1040 Schedule A, and this also applies to hobby expenses.

Some hobbyists try to get a tax deduction for their hobby expenses by treating their hobby as a trade or a business. For instance, if someone’s hobby expenses exceed their hobby’s income, they may try to report the difference between hobby income and expenses as a deductible business loss. To curtail hobbies being treated as businesses, the tax code includes rules that do not permit losses for not-for-profit activities such as hobbies. The not-for-profit rules are often referred to as the hobby loss rules.

The distinction between a hobby and a trade or business sometimes becomes blurred, and the determination depends upon a series of factors, with no single factor being decisive. All of these factors have to be considered when making the determination:

  • Is the activity carried out in a businesslike manner?
  • How much time and effort does the taxpayer spend on the activity?
  • Does the taxpayer depend on the activity as a source of income?
  • Are losses from the activity the result of sources beyond the taxpayer’s control?
  • Has the taxpayer changed business methods in attempts to improve profitability?
  • What is the taxpayer’s expertise in the field?
  • What success has the taxpayer had in similar operations?
  • What is the possibility of profit?
  • Is profit from asset appreciation possible?

Because determining these factors is so subjective, the IRS regulations provide that the taxpayer has a presumption of profit motive if an activity shows a profit for any three or more years during five consecutive years. However, if the activity involves breeding, training, showing, or racing horses, then the period is two out of seven consecutive years.

Making the proper determination is important because of the differences in tax treatment for hobbies versus trades or businesses. If an activity is determined to be a trade or business in which the owner materially participates, then the owner can deduct a loss on his or her tax return, and it is not uncommon for a business to show a loss in the startup years.

However, hobbies (not-for-profit activities) have special, unfavorable rules for reporting the income and expenses, which have been exacerbated by the 2017 passage of the Tax Cuts and Jobs Act (tax reform). These rules are:

  1. The income is reported directly on the hobbyist’s 1040;
  2. The expenses, not exceeding the income, are deducted as a miscellaneous itemized deduction. Thus, the expenses are only allowed if a taxpayer is itemizing deductions, rather than taking the standard deduction; and
  3. Due to tax reform, for tax years 2018 through 2025, miscellaneous itemized deductions that must be reduced by 2% of the taxpayer’s adjusted gross income – which is the category into which the hobby expenses fall – have been suspended (are not deductible). Thus, for those years, there is no deduction at all for hobby expenses, and any hobby income will be fully taxable. Example: Marcia has an income of $750 from her hobby (a not-for-profit activity) of coin collecting and expenses of $500. So, Marcia must include the $750 on her 1040. But because miscellaneous itemized deductions are currently suspended, she will not be able to deduct her $500 in expenses, leaving the full $750 as taxable income. 

Another concern for hobbyists who are reporting income from their hobby on their 1040 is whether or not that income is subject to self-employment tax. Luckily, there is an exception for sporadic or one-shot deals and hobbies, which are not subject to self-employment tax.

If you have questions related to how the not-for-profit rules may apply to your hobby, please contact us.