#obama's Small Business #Tax #Cut (examined)

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I am lucky enough, or unfortunate enough, to have a little inside information on one of the obama administration's small business tax cuts...

Specifically the HIRE Act, Hiring Incentives to Restore Employment

Sounds good anyway huh? lol

But... as it turns out this 'so called' tax cut is like so many other 'so called' tax cuts that we get, especially from the democratic party...

It is my own opinion that the democrats, generally speaking, HATE tax cuts...

So the 'trick' is to come up with one, a tax cut, that 'sounds' good but one that is so complex for mom and pop business' to take advantage of, or so meaningless as far as to who actually qualifies for it, that it doesn't really amount to a tax cut at all...

*I* think the HIRE Act falls into this category...

The HIRE Act, supposedly anyway, allows employers to take an exemption on their own 6.2% share of social security tax on wages paid to 'qualifying' employees... Effective for wages paid from March 19, 2010 through December 31, 2010.

(Unfortunately, actual employees are still required to pay their 6.2%... No sense in helping them... They already got their HUGE 13.00 a week tax break which has now expired...)

The thing is, as always, the government uses much complexity to tamp down the enthusiasm over any tax cut...

Let's face it... The majority of small business owner/operators in this country are not rocket scientists... That's not intended to knock them or mock them... Rocket science just usually isn't a prerequisite for small business ownership...

Government often, by design, makes it complex just to figure out who qualifies for tax cuts... Similar to what they did with the mortgage assistance program... That was so narrowly defined and difficult to qualify for that it didn't help hardly anyone at all! Besides the fact that it was just a way to increase bank profits in the end anyway...

Most small business' use a small or large accounting service to deal with the complexities of doing business and paying taxes in the United States... To deal with the IRS and all the government regulations and red tape...

So now lets look a little bit of the language in the this 'small business tax cut'...

(03/29/10) QR5: If an employee laid off in 2009 has been receiving COBRA premium assistance, for which the employer has been taking the COBRA premium assistance credit, and the employer rehires the employee, can the employer take the payroll tax exemption under the HIRE Act for wages paid to the employee?
A-QR5: Yes, if the employee is a qualified employee.

(05/06/10) QR6: Can a qualified employer both apply the payroll tax exemption and claim the work opportunity tax credit (WOTC) for the same employee?
A-QR6: No, an employer may either apply the payroll tax exemption or claim the WOTC for an employee, but not both. An employer that wishes to claim the WOTC for a qualified employee may not apply the payroll tax exemption with respect to any wages paid to that employee from March 19, 2010, through December 31, 2010.

(05/06/10) QR7: If an employer applies the exemption to wages paid to a nonqualified employee, is the employer liable for the amount of employer social security tax on wages previously reported as exempt?
A-QR7: Yes, the employer is liable for the amount of employer social security tax on wages it erroneously reported as exempt, because the exemption is only applicable to wages paid to qualified employees. The employer must file Form 941-X for each prior quarter for which the exemption was erroneously applied.

And as far as who is 'qualified' to receive it...

(06/01/10) QE1: Who are qualified employees?
A-QE1: Qualified employees are individuals who begin employment with a qualified employer after February 3, 2010, and before January 1, 2011, who have been unemployed or employed for 40 hours or less during the 60-day period ending on the date such employment begins, who are not employed by the qualified employer to replace another employee of that employer, unless the other employee separated from employment voluntarily or was terminated for cause, and who are not family members of or related in certain other ways to the employer.

(03/20/10) QE2: Do the qualified employees need to do anything to make it possible for their employer to claim the payroll tax exemption?
A-QE2: Yes, qualified employees must certify by a signed affidavit, under penalties of perjury, that they have not been employed for more than 40 hours during the 60-day period ending on the date they started employment. The IRS plans to issue a model affidavit that can be used for this purpose.

(03/20/10) QE3: Is the 60-day period continuous, and can it span 2009-2010?
A-QE3: The 60-day period must be continuous and can span 2009-2010.

(03/20/10) QE4: Does the payroll tax exemption apply to wages paid to an otherwise qualified employee hired to replace an existing worker whose employment terminated?
A-QE4: The payroll tax exemption does not apply to wages paid to an employee who is hired to replace an existing worker, unless the existing worker terminated employment voluntarily or was terminated for cause.

(03/20/10) QE5: Does the payroll tax exemption apply to wages paid to an employee who was previously laid off and then rehired by the same or a related employer after a 60-day period?
A-QE5: Yes, an employer may apply the payroll tax exemption to wages paid to a rehired employee who is otherwise a qualified employee.

(03/20/10) QE6: If an employer lays an employee off because of lack of work and later, when work picks up, hires a new employee, can the payroll tax exemption apply to wages paid to the new employee?
A-QE6: Yes, if the new employee is a qualified employee (i.e., was employed for less than 40 hours during the prior 60 days).

(03/20/10) QE7: Does the payroll tax exemption apply only if the employer previously laid employees off?
A-QE7: No, the payroll tax exemption can apply to wages paid to any qualified employee.

(03/20/10) QE8: If an employer hires a recent graduate who has been in school for some or all of the 60 days preceding the start of his employment, does the payroll tax exemption apply to wages paid to the employee?
A-QE8: Yes, if the employee is a qualified employee. It is not necessary that the individual was previously employed and has lost his or her job to be a qualified employee.

(05/06/10) QE9: Does the qualified employee have to work a set period of time for the employer to be eligible for the exemption?
A-QE9: No. Application of the payroll tax exemption does not require that a qualified employee be employed for a set number of hours or a set number of weeks.

(05/06/10) QE10: Is there a minimum age for qualified employees? Will high school summer hires and interns be considered eligible employees?
A-QE10: There is no minimum age requirement to be a qualified employee.

(05/06/10) QE11: Some businesses use the services of workers who are employees of a temporary agency. Can the temporary agency claim the payroll tax exemption for its qualified employee working at a client business?
A-QE11: The temporary agency can apply the exemption with respect to wages paid to a qualified employee of the temporary agency. This is determined based on when the employee begins employment with the temporary agency, and not based on when the employee begins work at a client business of the temporary agency.

(05/06/10) QE12: If a client business hires an employee who previously provided services to the business as an employee of a temporary agency, is the client business entitled to apply the payroll tax exemption?
A-QE12: The client business can apply the exemption if the worker is a qualified employee when he or she begins employment with the client as its employee. That is, the worker must not have worked as an employee for any business (including the temporary agency) for more than 40 hours in the 60 days prior to beginning employment with the client business.

(05/06/10) QE13: Can employers create their own affidavit or must they use IRS Form W-11?
A-QE13: Employers can use their own affidavit as long as it includes the same information as IRS Form W-11, Hiring Incentives to Restore Employment (HIRE) Act Employee Affidavit, and is signed under penalties of perjury.

(05/06/10) QE14: Must the signed affidavit (e.g., Form W-11) be notarized?
A-QE14: No

(05/06/10) QE15: Should employers send signed employee affidavits, such as Form W-11, to the IRS?
A-QE15: No, the employer does not file or send signed employee affidavits to the IRS. The employer should retain these affidavits with other payroll and income tax records.

(05/06/10) QE16: Can an employer apply the payroll tax exemption even if an employee fails to sign an employee affidavit, such as Form W-11?
A-QE16: No. An employer can only apply the exemption on wages paid to a qualified employee. In order to be a qualified employee, among other requirements, the employee must sign an employee affidavit such as Form W-11.

(05/06/10) QE17: Is there a deadline for the employer to get the signed affidavit from the employee?
A-QE17: Yes, the employer must have the signed affidavit by the time the employer files an employment tax return applying the payroll tax exemption. If the employer obtains the signed affidavit from the qualified employee after wages are paid to the employee, the employer can still apply the payroll tax exemption to determine its liability on these wages. In some cases this may require the filing of a corrected return for a prior quarter.

For example, an employer hires an otherwise qualified employee who begins employment on March 1, 2010 and is paid wages in March. The qualified employee does not provide the signed affidavit until April 15, 2010. The employer can claim the first quarter credit on the second quarter Form 941 for the amount of the exemption with respect to wages paid to the qualified employee from March 19, 2010 through March 31, 2010 and can apply the exemption to wages paid to the qualified employee starting April 1, 2010, despite the fact that the employee did not provide the signed affidavit until April 15, 2010.

In contrast, if the otherwise qualified employee does not provide the signed affidavit until August 1, 2010, the employer may not claim the first quarter credit on the second quarter Form 941 for wages paid to the qualified employee from March 19, 2010, through March 31, 2010, and cannot apply the exemption to wages paid in the second quarter because the employer did not obtain the signed affidavit by the time it filed its second quarter Form 941. Instead, the employer must file a Form 941-X to correct the second quarter of 2010 if it wants to claim the first quarter credit and apply the exemption to the second quarter wages paid to the qualified employee.

(05/06/10) QE18: May Form W-11 (or a similar form containing the same information as the Form W-11) be transmitted electronically and signed by way of electronic signature?
A-QE18: Yes, employers may obtain signed Forms W-11 (or similar forms containing the same information) electronically. The electronic system generating the form must transmit the same information as the Form W-11, must ensure that the information transmitted and received is the information sent, and must document all occasions of user access that result in the transmission.

The electronic transmission must be signed by way of an electronic signature by the employee whose name is on the Form W–11 and the signature must be made under penalties of perjury. The perjury statement must contain the language that appears on the paper Form W–11. The electronic system must inform the employee whose name is on the Form W–11 that the employee must make the declaration contained in the perjury statement and that the declaration is made by signing the Form W–11. The instructions and the language of the perjury statement must immediately follow the employee’s statements and immediately precede the employee’s electronic signature. The electronic signature must be the final entry in the employee’s Form W–11 submission.

The act of the electronic signature must be made by the employee whose name is on the electronic Form W–11, and the signature must also authenticate and verify the submission, by making reasonably certain that the person accessing the system and submitting the form is the employee identified on the Form W-11.

Upon request by the Internal Revenue Service during an examination, the employer must supply a hard copy of the electronic Form W–11, and a statement that, to the best of the employer's knowledge, the electronic Form W–11 was made by the employee whose name is on the form. The hard copy of the electronic Form W-11 must provide exactly the same information as, but need not be a facsimile of, the paper Form W–11.

"Form W–11 and the signature must be made under penalties of perjury" Did you get that part? The word 'perjury' is mentioned SIX times in this one section...

As it turns out this tax cut is much easier for politicians to 'talk' about than it is for small business' to implement...

To qualify every seemingly qualified employee must fill out a form w-11 under penalty of perjury... Though this 'tax cut' applies back to Feb/March of 2010 accountant types haven't been able to even get their hands on the form w-11 until late June because it didn't even exist until then...

Just the additional workload alone on small business owners likely makes it more trouble than it's worth... You have to figure out WHO might be qualified... Their hire date and whether or not you can take the exemption on them...

THEN if they no longer work for the company you are SOMEHOW supposed to track them down to try to get them to fill out and sign the REQUIRED form w-11 under penalty of perjury so YOU can get some of your tax money back, not them. What are small business' supposed to do hire a bunch of private detectives to get right on this?! Lord...

If you happen to be one of the many business' in the economy who hasn't hired anyone at all in 2010 then none of this applies to you... No tax cut for you at all...

All I wanted to say with this post is that this crap (excuse my language) that comes from the government in the form of 'tax assistance for small business' is mainly just a crock... If it's difficult for an accounting firm to figure out how many small business owners are going to be able to take advantage of it on their own? None?

Large corporations with a staff of accountants and attorneys might be able to take advantage of it... My calculations show that it likely amounts to about $1,000.00 in savings, not additional revenue, per employee.

Oligarchy..

Nuff said...

If you would like to read more about the HIRE Act (you must be crazy like me lol) click here to visit the IRS' website...

Greg