Captive Insurance Programs Under Scrutiny

Many of us have heard of captive insurance plans and have some level of familiarity with them.  In a nutshell, captive insurance plans involve a business forming its own insurance company as a risk management technique.  The basic premise which must be in place is that legitimate risks are being insured and the associated premiums are reasonably priced relative to those risks.  If bogus, aggressive risk pools are created and/or overpriced premiums are being charged, then the captive and all those associated with its formation may be at risk.  I have had conversations with a number of professionals in the business community over the past several months suggesting the IRS and other agencies will be significantly cracking down on abusive plans.

A business contact sent me this concise, one page article last week from the January issue of California Broker magazine.  




The author, Lance Wallach, puts forth some troubling news/information for those who have established a captive insurance plan which may be considered abusive as well as those who helped structure those plans (including the plan architects, insurance brokers, CPAs, etc.)  Mr. Wallach states in the article "...my office has been receiving over 50 calls per month from people that are being threatened with large IRS fines...Not all 412i, captive insurance and Section 79 plans are abusive, listed or reportable transactions, but almost all the Section 79 and captive insurance plans that I have recently seen are abusive...I have had phone calls from taxpayers that contributed less than $100,000 to a listed or reportable transaction and were fined over $500,000."    There is an IRS form, 6707A, which is used "to help detect, deter, and shut down abusive tax shelter activities...The IRS has fined hundreds of taxpayers who did file under 6707A.  They said that they did not fill out the forms properly, or did not file correctly."  Given Mr. Wallach's observations and experiences, if you (or a contractor you work with) are involved with a captive insurance program it may make sense to review the plan with professionals who are expert in this area to ensure you don't get penalized given the recent spotlight focused on captive insurance programs.

For more on this issue and to see Mr. Wallach's credentials, be sure to click on the link above to read the full article.  As always, reach out to your trusted advisors for guidance (or seek outside counsel if these advisors were instrumental in structuring your captive insurance program in order to get an outside opinion).

Workers' Comp Pure Premium Rate To Rise 30% in 2012

On November 4^th, the California Insurance Commissioner approved an increase, effective January 1, 2012, to the pure premium rates for workers’ compensation insurance resulting in an average increase of just over 30% in those rates (to $2.30 per $100 of payroll).  This is the first increase in the advisory pure premium rates since a 5% rate increase was approved by the Commissioner effective January 1, 2009.  In 2010 and 2011, the Commissioner kept the pure premium rates flat despite being presented with recommendations for increases in both years.  Keep in mind workers’ compensation rates are determined by the industry classification code your business falls within.  I was told by a reputable insurance broker contractors can expect to face increases anywhere from 10% to 40% on average.  If your loss history is relatively clean and your business is strong financially, you may see a lesser increase.  Regardless of the code your business falls within, you must begin planning now for these increased charges.  It is also important to note, as I discuss below, that the pure premium rate doesn't necessarily correlate precisely with the premium you pay.  There are a number of variables insurance companies use to affect the premium calculation.

This is very important news for contractors as this will increase the cost of doing business and therefore requires management to revisit the estimating process.  The work you are bidding on now will be bearing this significantly higher cost.  You do not want to be caught bidding work with 2011 rates only to see your backlog in 2012 experience profit fade relating to the higher actual costs of insurance you will be facing.

It is important to keep in mind that although pure premium rates are an input/base in determining workers’ comp rates, they do not account for a number of costs borne by an insurance company.  These costs include administrative/overhead costs and therefore the premium rates that a business pays are generally higher to cover those costs as well.  There may be ways to mitigate the impact of this increase based on your particular circumstances.  I would urge you to contact your insurance broker to discuss as he or she can help by being proactive.  It is also good to include other trusted advisors, such as your CPA and bond agent, in the discussion as well.

Although the increase effective January 1, 2012 will be significant, it bears noting that these rates are still approximately 50% lower than the rates effective July 2003 (when it was an average of $4.80 per $100 of payroll).  That is little solace during these tough times however knowledge is power… Knowing the rates are rising provides you the ability to keep ahead of the curve.

Year End Tax Planning Considerations

Our firm sends a letter to our clients at year end outlining some possible tax planning considerations.  I thought I'd publish it here as well.  If you have any questions, as always please contact me.  I hope you find a point or two in here useful!

Year-end tax planning is especially challenging this year because of uncertainty over whether Congress will enact sweeping tax reform that could have a major impact in 2012 and beyond. And even if there's no major tax legislation in the immediate future, Congress next year still will have to grapple with a host of thorny issues, such as whether to once again “patch” the alternative minimum tax (e.g., to avoid a drastic drop in post-2011 exemption amounts), and what to do about the post-2012 expiration of the Bush-era income tax cuts (including the current rate schedules, and low tax rates for long-term capital gains and qualified dividends), and the expiration of favorable estate and gift rules for estates of decedents dying, gifts made, or generation-skipping transfers made after Dec. 31, 2012.

Regardless of what Congress does late this year or early the next, there are solid tax savings to be realized by taking advantage of tax breaks that are on the books for 2011 but may be gone next year unless they are extended by Congress. These include, for individuals: the option to deduct state and local sales and use taxes instead of state and local income taxes; the above-the-line deduction for qualified higher education expenses; and tax-free distributions by those age 70- 1/2 or older from IRAs for charitable purposes. For businesses, tax breaks that are available through the end of this year but won't be around next year unless Congress acts include: 100% bonus first-year depreciation for most new machinery, equipment and software; an extraordinarily high $500,000 expensing limitation (and within that dollar limit, $250,000 of expensing for qualified real property); and the research tax credit.

We have compiled a checklist of actions based on current tax rules that may help you save tax dollars if you act before year-end. Not all actions will apply in your particular situation, but you will likely benefit from many of them. We can narrow down the specific actions that you can take once we meet with you to tailor a particular plan. In the meantime, please review the following list and contact us at your earliest convenience so that we can advise you on which tax-saving moves to make.

Year-End Tax Planning Moves for Individuals

□ Increase the amount you set aside for next year in your employer's health flexible spending account (FSA) if you set aside too little for this year. Don't forget that you can no longer set aside amounts to get tax-free reimbursements for over-the-counter drugs, such as aspirin and antacids.

□ If you become eligible to make health savings account (HSA) contributions in December of this year, you can make a full year's worth of deductible HSA contributions for 2011.

□ Realize losses on stock while substantially preserving your investment position. There are several ways this can be done. For example, you can sell the original holding, then buy back the same securities at least 31 days later. It may be advisable for us to meet to discuss year-end trades you should consider making.

□ Postpone income until 2012 and accelerate deductions into 2011 to lower your 2011 tax bill. This strategy may enable you to claim larger deductions, credits, and other tax breaks for 2011 that are phased out over varying levels of adjusted gross income (AGI). These include child tax credits, higher education tax credits, the above-the-line deduction for higher-education expenses, and deductions for student loan interest. Postponing income also is desirable for those taxpayers who anticipate being in a lower tax bracket next year due to changed financial circumstances. Note, however, that in some cases, it may pay to actually accelerate income into 2011. For example, this may be the case where a person's marginal tax rate is much lower this year than it will be next year.

□ If you believe a Roth IRA is better than a traditional IRA, and want to remain in the market for the long term, consider converting traditional-IRA money invested in beaten-down stocks (or mutual funds) into a Roth IRA if eligible to do so. Keep in mind, however, that such a conversion will increase your AGI for 2011.

□ If you converted assets in a traditional IRA to a Roth IRA earlier in the year, the assets in the Roth IRA account may have declined in value, and if you leave things as-is, you will wind up paying a higher tax than is necessary. You can back out of the transaction by recharacterizing the rollover or conversion, that is, by transferring the converted amount (plus earnings, or minus losses) from the Roth IRA back to a traditional IRA via a trustee-to-trustee transfer. You can later reconvert to a Roth IRA.

□ It may be advantageous to try to arrange with your employer to defer a bonus that may be coming your way until 2012.

□ Consider using a credit card to prepay expenses that can generate deductions for this year.

□ If you expect to owe state and local income taxes when you file your return next year, consider asking your employer to increase withholding of state and local taxes (or pay estimated tax payments of state and local taxes) before year-end to pull the deduction of those taxes into 2011 if doing so won't create an alternative minimum tax (AMT) problem.

□ Take an eligible rollover distribution from a qualified retirement plan before the end of 2011 if you are facing a penalty for underpayment of estimated tax and the increased withholding option is unavailable or won't sufficiently address the problem. Income tax will be withheld from the distribution and will be applied toward the taxes owed for 2011. You can then timely roll over the gross amount of the distribution, as increased by the amount of withheld tax, to a traditional IRA. No part of the distribution will be includible in income for 2011, but the withheld tax will be applied pro rata over the full 2011 tax year to reduce previous underpayments of estimated tax.

□ Estimate the effect of any year-end planning moves on the AMT for 2011, keeping in mind that many tax breaks allowed for purposes of calculating regular taxes are disallowed for AMT purposes. These include the deduction for state property taxes on your residence, state income taxes (or state sales tax if you elect this deduction option), miscellaneous itemized deductions, and personal exemption deductions. Other deductions, such as for medical expenses, are calculated in a more restrictive way for AMT purposes than for regular tax purposes. As a result, in some cases, deductions should not be accelerated.

□ Accelerate big ticket purchases into 2011 in order to assure a deduction for sales taxes on the purchases if you will elect to claim a state and local general sales tax deduction instead of a state and local income tax deduction. Unless Congress acts, this election won't be available after 2011.

□ You may be able to save taxes this year and next by applying a bunching strategy to “miscellaneous” itemized deductions, medical expenses and other itemized deductions.

□ If you are a homeowner, make energy saving improvements to the residence, such as putting in extra insulation or installing energy saving windows, and energy efficient heaters or air conditioners. You may qualify for a tax credit if the assets are installed in your home before 2012.

□ Unless Congress extends it, the up-to-$4,000 above-the-line deduction for qualified higher education expenses will not be available after 2011. Thus, consider prepaying eligible expenses if doing so will increase your deduction for qualified higher education expenses. Generally, the deduction is allowed for qualified education expenses paid in 2011 in connection with enrollment at an institution of higher education during 2011 or for an academic period beginning in 2011 or in the first 3 months of 2012.

□ You may want to pay contested taxes to be able to deduct them this year while continuing to contest them next year.

□ You may want to settle an insurance or damage claim in order to maximize your casualty loss deduction this year.

□ Purchase qualified small business stock (QSBS) before the end of this year. There is no tax on gain from the sale of such stock if it is (1) purchased after September 27, 2010 and before January 1, 2012, and (2) held for more than five years. In addition, such sales won't cause AMT preference problems. To qualify for these breaks, the stock must be issued by a regular (C) corporation with total gross assets of $50 million or less, and a number of other technical requirements must be met. Our office can fill you in on the details.

□ If you are age 70- 1/2 or older, own IRAs and are thinking of making a charitable gift, consider arranging for the gift to be made directly by the IRA trustee. Such a transfer, if made before year-end, can achieve important tax savings.

□ Take required minimum distributions (RMDs) from your IRA or 401(k) plan (or other employer-sponsored retired plan) if you have reached age 70- 1/2. Failure to take a required withdrawal can result in a penalty of 50% of the amount of the RMD not withdrawn. If you turned age 70- 1/2 in 2011, you can delay the first required distribution to 2012, but if you do, you will have to take a double distribution in 2012—the amount required for 2011 plus the amount required for 2012. Think twice before delaying 2011 distributions to 2012—bunching income into 2012 might push you into a higher tax bracket or have a detrimental impact on various income tax deductions that are reduced at higher income levels. However, it could be beneficial to take both distributions in 2012 if you will be in a substantially lower bracket that year, for example, because you plan to retire late this year.

□ Make gifts sheltered by the annual gift tax exclusion before the end of the year and thereby save gift and estate taxes. You can give $13,000 in 2011 to each of an unlimited number of individuals but you can't carry over unused exclusions from one year to the next. The transfers also may save family income taxes where income-earning property is given to family members in lower income tax brackets who are not subject to the kiddie tax.

Year-End Tax-Planning Moves for Businesses & Business Owners

□ Businesses should consider making expenditures that qualify for the business property expensing option. For tax years beginning in 2011, the expensing limit is $500,000 and the investment ceiling limit is $2,000,000. And a limited amount of expensing may be claimed for qualified real property. However, unless Congress changes the rules, for tax years beginning in 2012, the dollar limit will drop to $139,000, the beginning-of-phaseout amount will drop to $560,000, and expensing won't be available for qualified real property. The generous dollar ceilings that apply this year mean that many small and medium sized businesses that make timely purchases will be able to currently deduct most if not all their outlays for machinery and equipment. What's more, the expensing deduction is not prorated for the time that the asset is in service during the year. This opens up significant year-end planning opportunities.

□ Businesses also should consider making expenditures that qualify for 100% bonus first-year depreciation if bought and placed in service this year. This 100% first-year writeoff generally won't be available next year unless Congress acts to extend it. Thus, enterprises planning to purchase new depreciable property this year or the next should try to accelerate their buying plans, if doing so makes sound business sense.

□ Nail down a work opportunity tax credit (WOTC) by hiring qualifying workers (such as certain veterans) before the end of 2011. Under current law, the WOTC won't be available for workers hired after this year.

□ Make qualified research expenses before the end of 2011 to claim a research credit, which won't be available for post-2011 expenditures unless Congress extends the credit.

□ If you are self-employed and haven't done so yet, set up a self-employed retirement plan.

□ Depending on your particular situation, you may also want to consider deferring a debt-cancellation event until 2012, and disposing of a passive activity to allow you to deduct suspended losses.

□ If you own an interest in a partnership or S corporation, you may need to increase your basis in the entity so you can deduct a loss from it for this year.

Update on H.R. 674 (Repeal the 3% Withholding on US Government Contracts)

Earlier today the Senate unanimously passed (95 - 0) this bill to repeal the 3% withholding on US Government Contracts (see my post below providing more background).  The House did pass the bill on October 27th however since the Senate inserted an amendment to the bill (which included a provision for tax credits to employers hiring unemployed veterans) it now needs to go back to the House for approval of the bill as amended.  

After the House approves the amended bill it needs to go to the White House for signature.  Approval by the White House is expected and this repeal seems very likely to come to fruition at this point.

H.R. 674 Seeks to Repeal the 3% Withholding Requirement on US Government Contracts

The 2005 Tax Increase Prevention and Reconciliation Act contained a requirement (Section 511) for Federal, State and Local Governments with annual expenditures greater than $100 million dollars (and most purchases greater than $10,000) to withhold 3% on payments to all vendors and service providers.  This means that in addition to retention on government contracts, an additional 3% would be withheld.

This requirement has been postponed on several occasions and is currently set to be effective January 2013.  In May 2011, Representative Walter Herger (CA) introduced H.R. 674 which would amend the Internal Revenue Code to repeal this 3% withholding requirement.  The bill is scheduled to be debated in the House this week.

If you would like to see H.R. 674 passed, repealing this 3% withholding, it makes sense to write letters to members of Congress expressing your position.  The Associated General Contractors of America sent a letter to Mitch McConnell in support of the repeal.  Also, I found this letter sent by the American Medical Association (this withholding affects all service providers to the government).  These letters can serve as a guideline for any letters you wish to send in support of H.R. 674.  If you wish to sent a letter to your Representative in Congress,  a list of Representatives in the House can be found here.  In addition to writing your Representative, I'd suggest reaching out to those serving on the Budget committee, such as Tom McClintock or John Campbell as well as to Dave Camp, Chairman of the House Ways and Means committee.  Their Washington D.C. addresses are toward the bottom of each of their pages.

CA Enterprise Zone Update

Earlier this year I wrote about the newly proposed CA Enterprise Zones.  Recently the Housing and Community Development Department (HCD) and Governor Brown's office have acted with regard to the proposed/conditional California Enterprise Zones.  These zones include sections of Anaheim, LA and San Diego.

Governor Brown's administration will resume the process of completing the final designation of the following conditional Enterprise Zones bullet pointed below.  These conditional zones will have until April 7, 2012 to satisfy all outstanding conditions in order to complete the final designations.  Once the deadline has passed, the HCD will announce which zones met the requirements and how soon the cities can continue providing its businesses with tax credits and incentives.

• City of Anaheim
• Harbor Gateway Communities of LA, Huntington Park and County of Los Angeles
• City of Pittsburg
• County of Contra Costa
• Sacramento (cities of Sacramento, West Sacramento, Rancho Cordova and county of Sacramento
• San Diego (cities of San Diego, Chula Vista and National City)
• City and County of San Francisco
• Santa Clarita Valley
• Sequoia Valley (cities of Dinuba, Exeter, Farmersville, Lindsay, Porterville, Tulare, Visalia, Woodlake and County of Tulare)

Conducting business within an Enterprise Zone allows for significant tax incentives and savings.  If you have any questions regarding Enterprise Zones feel free to contact myself or your service provider for more information.  For a top level overview on the savings for businesses in Enterprise Zones, read this post.

Update on SB 293 (Retention) and SB 474 (Indemnification)

Earlier this week Governor Brown signed a number of bills including SB 293 by Senator Alex Padilla (D - Pacoima) and SB 474 by Senator Noreen Evans (D - Santa Rosa).  As mentioned in a previous post, SB 293 caps retention on public projects at 5% and provides for quicker payment.  SB 474 limits liability on projects by allocating damages and related costs to those contractors who caused those damages.  The below summary of the bills was taken from an email distributed by the American Subcontractors Association.

SB 293 takes effect January 1, 2012. It:

1. Decreases, from 10 to 7, the number of days by which a prime contractor or subcontractor must pay a subcontractor after receiving a progress payment, unless otherwise agreed to in writing.

2. Requires a subcontractor to give written notice to the surety and bond principal that he or she is enforcing a claim prior to completion or recordation of the Notice of Completion of a project, except as specified, if the 20-day public works preliminary notice was required by any person that has no direct contractual relationship with the contractor and who has not given notice as provided in Civil Code Section 3098, that person may enforce a claim by giving written notice to the surety and bond principal within 15 days after recordation of a notice of completion. If no notice of completion has been recorded, the time for giving written notice to the surety and the bond principal is extended to 75 days after completion of the work of improvement. This provision would not apply in the event that all progress payments, other than those disputed in good faith, have been made to a subcontractor who has a direct contractual relationship with the general contractor to whom the

claimant has provided materials or services, or in the case of a subcontractor who has been terminated from the project pursuant to the contract, all such progress payments have been made as of the termination date, except those disputed in good faith.

3. Exempts a laborer from preliminary notice requirements to a surety and bond principal and any deadline to enforce a claim after the completion of a project for private works of improvement.

4. Prohibits a public entity from retaining more than five percent of a contract price until final completion and acceptance of a project.

5. Requires that retention proceeds between an original contractor and a subcontractor, or between two subcontractors, not exceed five percent of payment or contract price. Does not apply if the contractor provides written notice to the subcontractor, prior to or at the time that the bid is requested, that a bond may be required and the subcontractor subsequently is unable or refuses to furnish to the contractor a performance or payment bond issued by an admitted surety insurer.

6. Prohibits progress payments on public works contracts from being made in excess of 100 percent of the percentage of actual work completed.

7. Authorizes a public entity to retain more than five percent of the contract price in public works projects under the following conditions:

A.   For certain projects awarded by state departments, the project is substantially complex and the department includes this finding and the actual retention amount in the bid documents;

B.   For projects awarded by local entities, the governing body of the local public entity, or its designee, has approved or ratified by a majority vote during a properly noticed and normally scheduled public hearing prior to bid that the project is substantially complex, and includes this finding and the actual retention amount in the bid documents;

and,

C.  Retention proceeds between an original contractor and a subcontractor, or between two subcontractors, shall not exceed the specified retention percentage in the contract between the public entity and the original contractor.

1. Sunsets these retention provisions on January 1, 2016.

2. Defines "public entity" to mean the state, including every state agency, office, department, division, bureau, board, or commission, the California State University, the University of California, a city, county, city and county, including chartered cities and chartered counties, district, special district, public authority, political subdivision, public corporation, or nonprofit transit corporation wholly owned by a public agency and formed to carry out the purposes of the public agency. 

SB 474 takes effect on January 1, 2013
 

SB 474's staff synopsis as enrolled and sent to the Governor:

  

1. Prohibits construction contracts requiring indemnity, insurance, or defense obligations by a subcontractor for the active negligence or willful misconduct of a general contractor, his/her agents, or certain other subcontractors.

2. Provides that, unless otherwise prohibited under this bill, the parties to a construction contract can freely contract for other protections and obligations of each party, but allows numerous exemptions, including residential construction contracts, direct contracts with a public agency or owner, and insurance contracts for project wrap up and workers' compensation.

3. Requires an insurer to uphold their contractual obligations to additional insureds pursuant to Presley Homes, Inc. v. American State Insurance Company (2001) 90 Cal.App.4th 571.

4. Provides that an insurer maintains reimbursement rights from a general contractor or other subcontractor pursuant to the holding in Buss v. Superior Court (1997) 16 Cal.4th 35.

5. Provides a defense or settlement option for commercial construction contracts similar to existing law regarding residential construction contracts under which a subcontractor, after receiving claim information from the general contractor, has the option to defend the claim or pay its portion of the claim.

6. Provides that in the event a contractor fails to maintain its obligations to defend or pay its portion of the claim, the general contractor may make a claim for compensatory and consequential damages and reasonable attorney's fees.

7. Clarifies that a public agency is prohibited from shifting its liability for its active negligence to a contractor, subcontractor, or materials supplier.

8. Establishes that a project owner, not acting as a project manager, general contractor, or materials supplier, is prohibited from shifting liability for its active negligence to a contractor, subcontractor, or materials supplier.

9. Provides that these new rights and obligations shall be construed to affect the obligation, if any, of either a contractor or construction manager to indemnify, including defending or paying the costs to defend, a public agency against any claim arising from the alleged active negligence of the public agency under Civil Code Section 2782(b) or to indemnify, including defending or paying the costs to defend, an owner of privately owned real property to be improved against any claim arising from the alleged active negligence of the owner under Civil Code Section 2782(c).

10. Provides that the foregoing changes shall not be construed to affect the obligation, if any, of either a contractor or construction manager to provide or maintain insurance covering the acts or omissions of the promisor, including additional insurance endorsements covering the acts or omissions of the promisor during ongoing and completed operations pursuant to a construction contract with a public agency under Civil Code Section 2782(b) or an owner of privately owned real property to be improved under Civil Code Section 2782(c).