About Frank Lago

As an attorney dedicated to serving businesses and business owners, I help businesses and their owners become battle ready by counseling in a wide variety of matters which businesses and their owners face: from reviewing contracts and drafting agreements to regulatory compliance, mergers & acquisitions (representing buyers and sellers), employment law (e.g. handbooks, EEOC representation), intellectual property (e.g. copyright, trademark, trade secret), tax (e.g. federal, state, local), and international trade (e.g. China, Israel).

New DOL Overtime Rules

By: Frank N. Lago, Esq.

The Fair Labor Standards Act (FLSA) guarantees a minimum wage for all hours worked during the workweek and overtime pay of 1.5 times the employee’s regular rate of pay for hours worked over 40 in a workweek. The DOL has revised the rules that apply to executive, administrative, professional, and computer employees, generally known as “white-collar” workers. These new rules do not apply to employees who are exempt from over-time pay under Section 7(i) of the FLSA. Those employees typically earn more than 50% of their pay from commissions. To determine if an employee is exempt from having to be paid over-time, the employer must apply two test, the threshold test and the duties test.

The Threshold Test. If the white-collar employee earns less than $913 a week, which is $47,476 a year, the employee is entitled to overtime pay for hours worked over 40, regardless of their job duties and responsibilities. If they make more than this amount, they will qualify for overtime only if they meet the standard duties test, discussed below. This is an increase from the previous amount established in 2004 of $455 per week. The threshold will be adjusted every three years, and adjusted to the salary level of the 40th percentile of weekly earnings of full time salaried workers in the lowest-wage census region according to the BLS. White-collar workers who earn less than the $913 per week will be eligible for overtime.

When calculating the salary of an individual, nondiscretionary bonuses and incentive payments, including commissions, can satisfy up to 10% of the standard weekly salary, but the remaining 90% needs to be paid on a regular basis, provided the bonuses are paid at least quarterly. Additionally, if at the end of a quarter, the employee’s salary is less than the $913 per week, the employer will have one week to make a catch-up payment to bring that employee to the threshold limit, so long as the shortfall is only 10% of the salary level.

Here is the example from the final rule. “In January, February, and March, Employee A must receive $821.70 per week in salary (90 percent of $913), and the remaining $91.30 in nondiscretionary bonuses and incentive payments (including commissions) must be $131 paid at least quarterly. If at the end of the quarter the employee has not received the equivalent of $91.30 per week in such bonuses, the employer has one additional pay period to pay the employee a lump sum (no greater than 10 percent of the salary level) to raise the employee’s earnings for the quarter equal to the standard salary level.”

The Duties Test. If the employees “primary duty” is as an “executive,” “administrative,” or “professional” employee, they are exempt from earning overtime pay.  An executive is someone: whose primary duty in management of the business; who customarily and regularly directs work; and who has the authority to hire or fire other employees or advise on their status.

An “Administrative” employees is an employee: whose primary duty is the performance of office or non-manual work directly related to the management or general business operations; and whose primary duty includes the exercise of discretion and independent judgment with respect to matters of significance. “Matters of significance” refers to the level of importance or consequence of the work performed.

A “professional employee” is an employee: whose primary duty is the performance of work that requires knowledge of an advanced type in a field of science or learning customarily acquired by a prolonged course of specialized intellectual instruction or requires invention, imagination, originality or talent in a recognized field of artistic or creative endeavor.

Highly Compensated Employees. If the employee earns more than $134,000, regardless of duties, they are exempt from overtime pay.

We can help. The attorneys at Walk Law Firm, PA is experienced in assisting its clients with FLSA audits, overtime, timekeeping, and pay practices and policies.  We understand how you have to comply with the legal requirements while growing and advancing your business.  Please feel free to call one of our attorneys at (813) 999-0199, or contact us via our website at www.WalkLawFirm.com Please note the above example is a simple scenario that does not involve bonuses, salary deductions, or any other factor that could affect how the effective hourly rate, overtime rate, and overtime pay are calculated.  While FLSA appears simple, there are a myriad of rules involving its applications and possible misapplications by businesses.

Violation of Bank Secrecy Act leads to $200,000 fine for Gold Buyer.

In December 2015, the Financial Crimes Enforcement Network (FinCen) fined a precious metal dealer for violating the Bank Secrecy Act (BSA) anti money laundering (AML) requirements, $200,000, in addition to forcing them to hire an auditor and provide comprehensive financials to FinCen. The gold buyer failed to secure the necessary customer information when buying and selling precious metals. And to think, the fine and penalties could have all been easily avoided.

The Bank Secrecy Act makes “dealers” of “covered goods” create and enforce an Anti-Money Laundering program. “Covered goods” are jewels, precious metals, precious stones, and finished goods (including jewelry. A “dealer” is a person, or entity that has purchased AND sold $50,000 of covered goods. Most businesses that buy and sell gold, fall under this definition.

If the business entity is a dealer of covered goods under the BSA, they must have an anti-money laundering program. The Bank Secrecy Act, Anti-Money Laundering Examination Manual mandates that the program have: “a system of internal controls to ensure ongoing compliance, independent testing of BSA/AML compliance, designate an individual or individuals responsible for managing BSA compliance (BSA compliance officer), and training for appropriate personnel.” The program is intended to identify large cash transactions of potential money launders. Pinellas, Hillsborough, and Paso counties are High Drug Trafficking Areas, so the need to launder money is great. Next time you have a large dollar transaction, think about your AML program.

Next Blog: The necessary elements of an AML Program.

 

The Walk Law Firm can help you become compliant with the BSA/AML statutes. Contact Frank Lago if you have questions or concerns about your BSA/AML compliance.

Understanding Limited Liability Company (LLC) Taxation

Once you’ve decided to form a limited liability company (LLC), your next decision is most likely going to be “how am I going to be taxed?” An LLC is not a tax entity. Instead, the IRS considers the LLC “disregarded” and applies tax laws that apply to sole proprietorships, corporations, and partnerships to the LLC. But, to avoid an esoteric discussion of tax law, I hope I can give you enough information in this article to help you in determining which tax entity is best for you.

If your LLC has one owner, it may elect to be a C corporation or S corporation, otherwise it will be a Disregarded Entity.  “Disregarded Entity” means the IRS ignores there is a legal entity between you and the income, losses, assets, etc. for tax purposes. A single owner disregarded entity will be treated as a sole proprietorship. If your LLC has multiple owners, it may elect to be a C corporation or S corporation, otherwise it will be a Disregarded Entity. A multi-owner disregarded entity will be taxed as a partnership.

To be or not to be… Disregarded

          Sole Proprietorships

The single member LLC, when disregarded, is analogous to a sole proprietorship. That is to say, you are your business and your business is you. Per the IRS, as a consequence of not making an election you will report your income and deductions, from your LLC, on a Schedule C, on your Form 1040. This is the simplest form of taxation and provides for single-level taxation. “Single” or “Double” taxation, as you’ll read later, refers to how many times the federal government gets to tax your “income.” With a sole proprietorship the only income tax that applies would be your individual income tax. But, the drawback of the sole proprietorships is that you have to pay Self-Employment Tax on all the income you make from the business. So keeping that in mind, you are going to pay income and self-employment tax on the profit you’ve made.

How much is self-employment tax? Generally it’s 15.3% on the first $117,000. Anything above $117,000 is subject to a 2.9% Medicare tax. There is an Additional Medicare Tax 0.9% tax for income over a threshold amount. The threshold amounts vary by filing status, but if you’re married filing jointly it is $250,000.

So in addition to your self-employment tax of 15.3%, you’re going to pay personal income tax. Assuming a 20% effective personal income tax rate, that’s a whopping 35.3%. Keep in mind that personal tax rates range from 0% to 39.6%, and possibly higher with the investment tax. As my good friend George says, the IRS is not my business partner, and luckily for him and for you there is a tax planning opportunity here.

C and S Corporations

The IRS allows for single members LLCs to elect, according to the check the box rules, to be taxed as a corporation. When you elect to be taxed as a corporation you are electing to be taxed under subchapter C of the internal revenue code, hence the nomenclature “C Corporation.” C corporations pay income tax on their income, though at preferential graduate tax rates. That means the overall tax brackets are lower than individual brackets. The profits stay in the company until there is a distribution. Typically, you’re going to distribute money from the corporation in the form of a dividend. Dividends are taxed at different rates than your income is taxed, typically much lower, at “capital gain” rates of 15-20%. But, you’re paying tax twice. Which is why this generally isn’t used as a tax structure, but the C Corporation’s brother, the S corporation is much more useful in reducing federal taxes.

Subchapter S corporations give the benefit single taxation at the individual level, while relieving some of the self-employment tax. Thus, instead of paying a corporate income tax, the S corporation pays nothing. In exchange, all of the income is deemed to have been distributed to the shareholders, unlike a C corporation, which only taxes its distributions when actually distributed. This is known as “phantom income.” The S corporation shareholders, whether or not they received the distributions, will pay taxes on that amount. One major benefit is that the shareholders do not pay self-employment tax on the income that is considered a distribution. This has the potential to greatly lower your tax bill. But, you have to approach this structure with caution. An S corp. does have to employ someone to do work. So if you’re doing all the work, you do have to pay yourself a “reasonable salary,” and you and the corporation will share the self-employment tax on your amount of compensation and file employment tax returns, Forms 941/944 and Form 940. Individuals get in trouble when they pay themselves too little and all the income as distribution. As in the case of Mr. Watson who found himself in court after paying himself $24,000 in wages and taking $203,651 in distribution.  While paying yourself a less than reasonable salary will lower your tax bill, it places you at risk. Nonetheless, any amount of money on which you do not have to pay employment tax, will reduce your taxes. Here’s an oversimplified example:

You’ve taxable income is $150,000 as an individual and you’re married. As a sole-proprietorship, you pay $39,528 in federal income tax plus $17,901 self-employment tax for a whopping $57,435. You keep $92,565.

If you were operating as an S corporation, let’s assume you pay yourself as a wage $75,000 and receive $75,000 in distributions. First, you’d pay self-employment tax on your wages of $75,000, which is $11,475. Reducing your distribution by that amount leaves you with $69,262 (75k for tax purposes) in compensation in your pocket and $69,262 available for distribution. Your income tax will be $35,928 plus 36% over 140,000. The product being $1,534 plus $35,928, totaling $37,426 in taxes. From $150,000 less self-employment taxes paid, take home $101,099 versus $92,565 as a sole proprietorship. A savings of $8,534 in taxes.

One caveat to keep in mind is that an S corporation generally cannot deduct health insurance and term life premiums while a C corporation can deduct up to $50,000 per employee. If you really wanted to make these amounts deductible, you could actually setup two separate entities and get the best of both worlds, primarily using a management contact.

S corporations also cannot make distributions unevenly, this is known as the “single class of stock” rule and have restrictions on ownership, unlike C corporations.

Partnerships

LLCs, with two or more members, who do not elect to be taxed as a corporation, will be taxed as a partnership. Partnerships, like S corporations, are a pass through tax entity. Meaning, the income is passed directly from the partnership to its Partners. Partnerships do not pay separate income taxes like C corporations. Partners of a partnership are not employees and should not receive a salary. There is a rich, legal history in understanding the employment status of partners in partnerships. Here is a detailed history. Otherwise, understand that a partner will pay self-employment tax on all of his income that flows from the partnership. A partnership can make “guaranteed payments,” which look like a salary to the partner. But, the partner will still need to pay self-employment tax on this income. There are several reasons to avoid the self-employment tax, but there are several reasons why you might choose to be taxed as a partnership.

Partnerships offer the most flexibility with a pass-through tax entity. A partnership will undoubtedly need a partnership agreement, or in the case of an LLC, an operating agreement. Both are contracts that govern the relationship between the entity and its members (LLC) or partners. With a partnership you can get creative in how cash will be distributed, who will be allocated income and losses, foreign or domestic, how debts are repaid, etc. For this reason, when there are multiple members who are not even partners, they often choose to be taxed as a partnership. But, to the extent that your entity doesn’t need a complicated structure of distributions or allocations, it is usually advisable not to be taxed as a partnership.

 A Note on Liability

As a general rule, LLC members are not liable for the debts of the LLC. But, in Florida, in accordance with the Olmstead case, the single member or a single member LLC, may become liable for the debts of the LLC, after the creditor secures a charging order. This is not the case for a multi-member LLC. If you are considering a single member LLC, you may consider a Florida Corporation with an S Corporation election, because you will get the limited liability you are searching for and the benefits of pass through taxation.

Need more help?
If you have more questions or need help establishing your entity please call our offices at (813) 999-0199, www.WalkLawFirm.com.

Frank Lago is an attorney at the Walk Law Firm, PA. HE is a graduate of Stetson University School of Law and holds an LLM in Taxation from Georegetown University.