Tax and money picture

Do you know who pays the tax on gift that is subject to federal estate tax?

In a previous post, I described what the IRS considers to be a gift.
If a gift has been made and there is no exclusion connected to it, gift tax may be due.  However, while a federal gift tax return may be required based on only one gift of $15,000.00, the chances of owing tax on a gift are much more remote.  The gift or gifts would have to exceed the unified credit amount, which currently stands at approximately 5.4 Million Dollars.

Nonetheless, if tax is due to the IRS on a gift, usually the person making the gift pays the tax.

It is important to know when gifts you make trigger your obligation to file a federal gift tax return (IRS Form 709, United States Gift [and Generation-Skipping Transfer] Tax Return).  I have heard the IRS doesn’t take kindly to individual who fail to file required tax returns 🙂
If a person makes an annual gift or a total annual gifts to one person over the annual exclusion, a gift tax return must be filed with the IRS. However, unless the total of the gifts go beyond the unified credit, 5.4 million, the person will not owe any gift tax.
Every US citizen has what is known as the annual exclusion which allows the person to gift away up to whatever the current year amount is without either having to file an IRS Gift Tax Return or being subject to any tax.
The annual exclusion amount for 2015 is $14,000.00. That means an individual could make as many $14,000 gifts as he desires to different people and not be subject to any tax or have to file a gift tax return.
One of the key points with the annual exclusion is any property gifted under the exclusion does not count against the unified credit. Let me provide an example that may be helpful:
  • A parent gifts the full annual exclusion amount in 2015 to each of their five children. That means the parent gifted $70,000 when all five gifts are added together. Since all of the gifts were within the annual exclusion amount the parent is not required to file a gift tax return.
  • Additionally, the $70,000 does not count against the unified credit, which in 2015 is approximately $5.4 million.

Connected Hands

Do you know why the federal estate tax and the federal gift tax are often addressed in the same discussion?

Although the federal estate tax and federal gift tax are separate statutes, they are connected by what is known as the unified credit.
The unified credit is automatically provided by the IRS Code to every US citizen at their birth. This credit is the amount of property that a person can gift away before they owe any tax to the IRS.
That means that all the gifts you make during your life are added to all the gifts you make at your death (through an Oklahoma Trust, Oklahoma Will or otherwise) and that is the basic amount that the IRS considers for taxation.
However, before any tax is assessed, you get to subtract (use your “coupon” so to speak) to reduce the amount.  The coupon can be applied to all gifts during life and at death.
So, while a person could use their whole coupon during their life, there is no requirement that they do so.  If there is an amount left on the coupon at death, the amount can be applied.
According to the IRS, the estate tax is a “tax on your right to transfer property at your death. It consists of an accounting of everything you own or have certain interests in at the date of death.”  The top federal estate tax rate for property transfers that are not otherwise credited or excluded is 40% for 2015.
Tender Leaf Tea Coupon from Flickr User AVI

Tender Leaf Tea Coupon from Flickr User AVI

Do you know what the Internal Revenue Service and your local grocery store have in common?

They both provide you with coupons you can apply to reduce the amount you required to pay!

Well, the IRS’s “coupon” is not exactly like scoring big with a $2.00 off coupon for Tide Detergent.  The IRS administers the unified credit.

The unified credit is automatically provided by the IRS Code to every US citizen at their birth. This credit is the amount of property that a person can gift away, either during life or at death, before they owe any tax to the IRS.

The coupon analogy is helpful because when a person passes, the person’s heirs can apply the IRS Unified Credit against against tax that might be owed by the deceased person.

For more specifics about the IRS unified credit, check this post, How does the IRS Unified Credit work?

In a previous post, I talked about the IRS unified credit, the IRS version of a coupon.  Here are some of the specifics on the unified credit.

  • The unified credit for people passing away in 2015 is approximately $5.4 million. That number is indexed to inflation and will rise a small amount each year and less changed by Congress.
  • This means that a person can give away up to the unified credit amount either during their life or at the time of their death without knowing any tax to the IRS.
  • For example, a person could gift $1 million to one of their children at age 25 and not owe any tax to the IRS.  
    Nonetheless, a gift tax return would have to be filed with the IRS year the gift was made. That is because of another tax exclusion vehicle.

One more point to remember is that federal tax law allows you give an unlimited amount of property to your spouse (assuming the spouse is a US Citizen) without incurring any tax.  If you die with a 20 million dollar estate, you can pass all of it to your pass without any tax being due.

  • This sounds really good, right?  Leave everything to your spouse and have no tax issues, right?  Not so fast my friend, as Lee Corso from ESPN’s College GameDay would say.

It is true that there would no tax assessed on the transfer to your spouse.  Presumably, however, at some point that same spouse is going to transfer the spouse’s estate to people other than a spouse.  If that transfer happens and the estate is valued over the unified credit amount, taxes will be an issues.

Since the word “gift” is at the heart of federal estate taxation, it makes sense to understand how the IRS views the term IRS Gift.  The IRS states that a gift is:

The gift tax is a tax on the transfer of property by one individual to another while receiving nothing, or less than full value, in return. The tax applies whether the donor intends the transfer to be a gift or not.
The gift tax applies to the transfer by gift of any property. You make a gift if you give property (including money), or the use of or income from property, without expecting to receive something of at least equal value in return. If you sell something at less than its full value or if you make an interest-free or reduced-interest loan, you may be making a gift.

You need to know when you have made a gift because that act could trigger obligations.
Cox+logo
Have you ever wondered why some companies that have multiple lines of business have multiple legal entities to operate them?
Why does one company have a holding company that owns 14 different Oklahoma limited limited liability companies?
The answer may be important to your Oklahoma company as you expand and grow.

The General Philosophy

My general philosophy on adding new business is if it is a business that is distinct from the existing business and/or presents new types of liability, the new line of business should be operated under a new legal entity.

Primary Purpose

The primary purpose of this legal separation is to attempt to keep the legal liabilities created by each business separate from the other business. For example, if a separate line of business such as roofing is sued due to an employee accident, if the new business is legally separate from the existing business, it much harder for the plaintiff in the lawsuit to involve the existing business in any way.

 

This is an advancement of the concept of using a legal entity (Oklahoma corporation or Oklahoma LLC) to separate your business from your yourself. A sole proprietor typically incorporates so that the business is operated legally separate from themselves. That is, the legal entity creates a wall of separation between the business activity and the owner’s individual assets. A claim against the business should not normally lead to the liability of the owner.

Key consideration

One thing to consider is whether you new business is simply a additional “line of business” or whether it is a new business with its primary tie to the existing business being common ownership.

A new line of business or new business unit may not require a new legal entity. While a new business very often requires the creation of a new legal entity.

Example from your friend in the the digital age

Cox Enterprises is an example of this type of legal separation for distinct business. Cox Entrprises is diversified media conglamorate that owns newspapers, dealertrack technologies, television stations, radio stations, Cox Communications, Manheim Auctions, Autotrader, Kelley Blue Book,Savings.com and Valpak. Many of the seperate lines of business are owned by separate entities including Cox Media Group, Inc., Cox Advanced Services Oklahoma, L.L.C. and Cox Cable Authorized Retailer, Inc.

A practical example

A business owner could create a new entity for the new business and still use the existing business for branding purposes. You could do this through a basic licensing agreement between your existing entity and the new entity and a shared services agreement. Additionally, you set up a holding company as the entity on top and then operate each business under entities owned by the holding company. You would create two new entities to carry out this plan and then set up one as Entity 1, in which you would own 100%, and then Entity 2 and Entity 3, which would each be owned 100% by Entity 1.

Questions to ask yourself

A couple of questions to ask yourself to determine whether you need a new legal entity:
  • How will new business be connected to the existing business?
  • Will new business use the same name as the existing business?
  • What other ties will the new business have to the existing business?

I have said that getting an Oklahoma trademark from the Oklahoma Secretary of State is a no-brainer. This is absolutely true but to understand the complete picture you need to understand why in some cases you would want to move on and get federal trademark protection.

It is easiest to understand why you would want to get a federal trademark from the United States Patent and Trademark Office (USPTO) by understanding the differences between a federal trademark in a trademark given by the Oklahoma Secretary of State.

What is a trademark?

The USPTO describes a trademark like this:

A trademark typically protects brand names and logos used on goods and services. A patent protects an invention. A copyright protects an original artistic or literary work. For example, if you invent a new kind of vacuum cleaner, you would apply for a patent to protect the invention itself. You would apply to register a trademark to protect the brand name of the vacuum cleaner. And you might register a copyright for the TV commercial that you use to market the product.

Oklahoma trademark protection

  • The Oklahoma Secretary of State will provide you with the certificate of trademark if it searches its database and finds nothing that conflicts with your mark. However, that is the extent of the search done by the Oklahoma Secretary of State’s office.
  • An Oklahoma trademark provides you with the right to use your mark in Oklahoma and to prevent other people from infringing on your mark in the state of Oklahoma.
  • An Oklahoma trademark is not an indication that you own the mark outside of Oklahoma.
    An Oklahoma trademark is a very thin level of protection even within the state of Oklahoma. This is because of the limited search done by the Oklahoma Secretary of State. It is possible and it’s happened on more than a few occasions that the Oklahoma Secretary of State issues a trademark certificate to a person and someone else comes along and is able to prove that they are actually the owner of the mark.
  • The cost of securing a trademark from the Oklahoma Secretary of State is the $50 registration fee and whatever you pay someone else to file.

Federal trademark

If you get a federal trademark you can have a high level of confidence that you have the right to use the mark throughout the entire United States.

As part of the process of securing the federal trademark you will have to search throughout the United States to determine if anyone else already has the mark.

You will also have to publish notice of your proposed trademark in places where people who normally search for that type of thing would look.
With the much higher level of protection, the cost of securing a federal trademark is also substantially higher. The cost can run anywhere between $2000.00-$3,500.00 depending on whether your registration has opposition.

Benefits of Federal Trademark protection

Below are a few of the benefits you have when you secure a federal trademark:

  1. Protection in working with resellers and distributors. If you have a product or service for which you will need resellers or distributors having a federal trademark provides them with confidence that you own the mark and also prevents them from registering the mark themselves and taking it right away from you.
  2. Facilitating domain name registration. Having a federal trademark gives you a better chance of winning in a dispute with another person who is registered a domain name which is the same as your mark
  3. Increased chances of worldwide protection. With the federal trademark you can register your mark with the United States customs and border protection service. This means that frequently when the service sees a product coming into the United States with a name the same as your mark it may get flagged and held up.better chance of winning in a lawsuit. If you have to file a lawsuit to stop infringement or defend a lawsuit, having a federal trademark gives you a better chance of winning. You will not need to establish that you are the owner of the mark.
  4. More damages. If you have a registered federal trademark you have a basis to recover substantially more damages from someone who is infringing on your mark than if you have a mark without a federal registration.

Factors to consider in deciding if a federal mark is necessary

  1. Scope of your business.  Is your business going to be simply local, within your own town?  Do you plan to market throughout your state and perhaps the United States?  Will you be selling your product or service online.  The broader the scope of your business, the more likely it is you need a federal trademark.
  2. Level of commitment to the business.  Is your a business a “hobby’?  Do you plan to run the business for a few years and then move onto to something else?
  3. Amount of resources.  Do you have enough money to pay for the federal registration process?  Does the value you expect to recive with a federal trademark exceed the cost you will incur?