Wrongful Death Proceeds Are Not Subject to Pennsylvania Inheritance Tax or Federal Income Tax

August 4, 2014 by

The Pennsylvania Wrongful Death statute allows the personal representative of an estate to bring an action for the benefit of a decedent’s spouse, children or parents to recover damages for the death of the decedent caused by the wrongful act, neglect, unlawful violence of another. The statute entitles a plaintiff to recover damages for pain and suffering, loss of earning power, medical and hospital bills, funeral expenses and certain estate administration expenses.

Wrongful death proceeds are not taxable for Pennsylvania Inheritance purposes or for federal income tax purposes. On the other hand survival action proceeds are subject to Pennsylvania inheritance tax. Since Pennsylvania taxes survival actions but not wrongful death actions, you, through your attorney want to maximize the wrongful death recovery amount. The court tends to allocate the proceeds of wrongful death actions and survival actions based upon the facts of the case and the evidence presented by your attorney.

Under the Pennsylvania Probate, Estate and Fiduciary code the Pennsylvania Department of Revenue is an interested party in any orphan’s court proceeding. Therefore your attorney must get written consent from the Pennsylvania Department of Revenue regarding the proposed allocation since its interests will be adversely affected by the amount allocated to the wrongful death action.

Survival Actions are valued at the decedent’s date of death for Pennsylvania Inheritance tax purposes. Any unpaid Inheritance tax is due within thirty days after the estate receives the proceeds. If there is any tax due beyond thirty days the Pennsylvania Department of Revenue begins charging interest on the unpaid balance which is currently 6%.

Contact Gregory J. Spadea

If you have a question about a wrongful death action or survival action please contact Spadea & Associates, LLC online or at 610-521-0604, located in Ridley Park, Pennsylvania.

Filed Under: Estate Planning, Tax Law Tagged With: , , , , , , , , , , ,

What Business Expenses Are Deductible?

July 31, 2014 by

Coffee cup and tax forms

If you are a self-employed sole proprietor or operate an LLC taxed as an S-corporation, any expense that your business incurs that is ordinary and necessary is deductible under Section 162 of the Internal Revenue Code. Therefore, list the total spent on each of the expense categories listed below:

  • Accounting, legal and professional fees;
  • Advertising;
  • Car expense – indicate total annual miles driven, then break out total annual business miles plus parking and tolls including business log with date, miles driven, business purpose and destination or
    total annual miles driven, actual fuel invoices, auto insurance, repairs and total miles driven and total annual business miles plus parking & tolls;
  • Fixed Assets – If you bought a vehicle, computer, equipment, office furniture or placed it in service during the tax year, even if you already owned it. Also provide a copy of the purchase invoice so the total cost can be expensed it under IRC Sec. 179;
  • W-3 – Salaries that your company paid to others. List officer and shareholder salary separately;
  • Employer share of employment taxes like FICA and FUTA;
  • Commissions or fees paid to other contractors. Have them fill in form W-9 if they were not incorporated so a 1099 can be issued by February 1;
  • If you already issued them a 1099, please provide the 1096 showing total independent contractors paid.
  • Professional Liability Insurance, Workmans Compensation Insurance and Health insurance;
  • Office Supplies;
  • Materials or Purchase of inventory for resale;
  • Travel, Hotel, Airfare and Car Rental;
  • Meals – keep track of date, place, person entertained and business purpose. If you do not have a digital calendar (such as Outlook or Google Calendar) then you need a receipt for everything If you have a digital calendar then you only need receipt if you pay more than $75.00;
  • Telephone including local, long distance, fax, land lines and mobile;
  • DSL, cable and internet charges;
  • Postage including shipping costs like Fed Ex and UPS;
  • Continuing education and business seminars and conferences;
  • Interest expense paid on business loans and provide year end balances;
  • Rent for office space or equipment;
  • Utilities like electricity, fuel oil, water or gas.
  • Prior year PA franchise (Capital Stock) tax from Page 2 of the PA RCT-101;
  • Prior Year Local Income Tax paid;
  • Total State sales tax paid if you included it in gross sales revenue.

Never pay any personal expenses from your business bank account. Instead take draws from your business account and transfer money to your personal account and pay the personal bills directly from your personal account. Contact Spadea & Associates, LLC at 610-521-0604, if you have any questions or need your tax returns prepared.

Filed Under: Tax Law Tagged With: , , , , , , ,

Illegal Drugs That Trigger Mandatory Minimum Sentences in Pennsylvania

July 15, 2014 by

Illicit drugs and paraphernalia

A person does not need to be convicted of having a large quantity of drugs to be subject to the mandatory minimum nor does the person need to actually possess the illegal drugs on their person. All drugs are not treated equally and here is a list of illegal drugs along with the weight required to trigger mandatory minimum sentences.

Marijuana

  • 2 lbs. to < 10 lbs. or 10 to < 21 live plants - 1st conviction is 1 year, subsequent conviction is 2 years.
  • 10 lbs. to < 50 lbs. or 21 to 51 live plants - 1st conviction is 3 years, subsequent conviction is 4 years.
  • 50 lbs. or more or 51 live plants or more – 1st conviction is 5 years subsequent conviction is 5 years.

Heroin

  • 1 gram to < 5 grams - 1st conviction is 2 years, subsequent conviction is 3 years
  • 5 grams to < 50 grams - 1st conviction is 3 years, subsequent conviction is 5 years
  • 50 grams or more – 1st conviction is 5 years, subsequent conviction is 7 years

Cocaine

  • 2 grams to < 10 grams - 1st conviction is 1 years, subsequent conviction is 3 years
  • 10 grams < 100 grams - 1st conviction is 3 years, subsequent conviction is 5 years
  • 100 grams or more – 1st conviction is 4 years, subsequent conviction is 7 years

Methamphetamine

  • 5 grams to < 10 grams - 1st conviction is 3 years, subsequent conviction is 5 years
  • 10 grams to < 100 grams - 1st conviction is 4 years, subsequent conviction is 7 years
  • 100 grams or more – 1st conviction is 5 years, subsequent conviction is 8 years

Amphetamine such as ecstasy

  • 5 grams or more – 1st conviction is 2.5 years, subsequent conviction is 5 years

Methaqualone

  • 50 tables to < 200 tablets or 25 grams to < 100 grams - 1st conviction is 1 year, subsequent conviction is 3 years.
  • 200 tablets or more or 100 grams or more – 1st conviction is 2.5 years, subsequent conviction is 5 years.

School Zone

  • Use, possession, or delivery of drug paraphernalia near a school by non-student (unless it relates to less than 0.5 oz. of marijuana) – 1st conviction is 1 year in addition to any imprisonment for the underlying drug crime.

If you are arrested and convicted of possessing any of the drugs listed here you may still avoid the mandatory minimum as long as the prosecution does not charge you or prove you intended to distribute the drug. Then you may qualify for an intervention program such as Veterans Court or home confinement or through the Accelerated Rehabilitative Disposition Program depending on if it is your first offense and other factors.

If you are arrested for possession or on any drug related charge, please contact Gregory J. Spadea online or at 610-521-0604, of Spadea & Associates, LLC in Ridley Park, Pennsylvania.

Filed Under: Criminal Law Tagged With: , ,

Your IRS Taxpayer Bill of Rights

July 11, 2014 by
Stop, pay your taxes!

Stop, pay your taxes!

The Internal Revenue Service announced on June 10, 2014, the adoption of a Taxpayer Bill of Rights that will become a cornerstone document to provide the nation’s taxpayers with a better understanding of their rights. The Taxpayer Bill of Rights takes the multiple existing rights embedded in the tax code and groups them into 10 key categories, making them more visible and easier for taxpayers to understand. The rights will be sent to millions of taxpayers this year when they receive IRS notices on issues ranging from audits to collection. The rights will also be publicly visible in all IRS facilities as well as online at IRS.gov.

The IRS released the Taxpayer Bill of Rights following extensive discussions with the Taxpayer Advocate Service, an independent office inside the IRS that represents the interests of U.S. taxpayers. I have given my opinion after each provision of the Taxpayer Bill of Rights on how I feel the IRS is doing with respect to each provision.

The Taxpayer Bill Of Rights are as follows:

  1. The Right to Be Informed. The IRS tries really hard to keep taxpayers informed but sometimes stops communicating for various reasons. Therefore, it is very important for you to follow up if you do not hear back from the IRS after 90 days of responding to a notice.
  2. The Right to Quality Service. The IRS is not delivering quality customer service. Whenever I call the IRS on behalf of a client, I am on hold for 30 to 60 minutes due to budget constraints and poor management. The IRS funding and employee headcount has decreased significantly since 2010, while its workload has increased due to health care reform and foreign account reporting rules.
  3. The Right to Pay No More than the Correct Amount of Tax. The IRS does a good job with this right and gives refunds when taxpayers file amended returns as well as billing taxpayers who fail to pay the correct amount of tax.
  4. The Right to Challenge the IRS’s Position and Be Heard. and
  5. The Right to Appeal an IRS Decision in an Independent Forum. Both these rights can be read together. The IRS does a good job giving taxpayers several ways to challenge or appeal its position either through the Taxpayer Advocate service, Appeals including fast track mediation, US Tax Court and the Court for Federal Claims.
  6. The Right to Finality. The IRS does not always provide a written report at the conclusion of a correspondence audit. Therefore, I always request a written report or statement from the IRS at the conclusion of an audit or when payments are applied from different years.
  7. The Right to Privacy. The IRS does a good job of protecting taxpayer privacy.
  8. The Right to Confidentiality. The IRS does a good job keeping your information confidential although it does share information with other federal agencies and state governments.
  9. The Right to Retain Representation. This is your most important right as a taxpayer. I personally know several clients that were not represented at the audit stage and paid more tax than clients I have represented at the audit stage with the same issues. I would never recommend a client go to an IRS audit by themselves.
  10. The Right to a Fair and Just Tax System. I think this right is the responsibility of Congress since they pass all the tax laws which are not always fair.

If you receive an IRS Notice or have any questions about your taxpayer rights feel free to contact Gregory J. Spadea online or at 610-521-0604. Gregory J. Spadea is a tax attorney, former IRS Agent and founding member of the Law Offices of Spadea & Associates, LLC located in Ridley Park, Pennsylvania.

Filed Under: Tax Law Tagged With: , , , , , , ,

Gifting as an Estate Planning Tool

June 20, 2014 by

Person being handed a house

The annual Exclusion for 2014 is $14,000 and is indexed for inflation so it will increase in the future. The person making the gift is the donor and the recipient of the gift is known as the donee. The donee never pays income tax on any gifts received because the Internal Revenue Code Section 102 specifically excludes gifts from income. If you have a large estate and want to use gifting to reduce your estate or inheritance tax you may want to consider one or all of the following strategies:

  • You can gift up to $14,000 in 2014 to any individual or you can make a joint gift with your spouse of $28,000 per year per person without affecting your $5.34 million estate tax exemption or unified credit. Keep in mind if you decide to gift a larger amount than the annual exclusion you can file a form 709 gift tax return and use up some of your $5.34 Million estate exemption.
  • You can also pay a donee’s tuition directly to the school which would not count toward the $14,000 annual exclusion.
  • If you pay a donee’s medical bills directly to the hospital or health care provider which also would not count toward the $14,000 annual exclusion.
  • You can also donate to a donee’s 529 College Savings Plan and give $70,000 individually or $140,000 with your spouse to make a joint gift to reduce your estate. However, if you give the maximum it wipes out your annual exclusion for that specific donee for the next 5 years. You can also change the donee in the future if that donee decides not to attend college. If the donee does attend college the amount withdrawn from the 529 plan to pay for tuition, books and fees are free of income tax.
  • If you have your own corporation or limited liability company (LLC) and you have a child or relative who works in the business, you can gift non-voting shares of the corporation or non- voting units of the LLC to that person over time but maintain control since you own all the voting shares.

    • If you have any questions about any of the gifting strategies listed above, feel free to contact Gregory J. Spadea at 610-521-0604. Gregory is the managing member of Spadea & Associates, LLC located in Ridley Park, Pennsylvania.

Filed Under: Estate Planning Tagged With: , , , , ,

What Should I Do if I Receive an IRS CP2000 Notice Stating I have Unreported Income

June 18, 2014 by

Sign on IRS Building in Washington, DC, United States

After you file your tax return the Internal Revenue Service (IRS) will match your return information with third parties who issued you W-2’s or 1099’s. If a discrepancy occurs the IRS will issue you a CP2000 notice assessing you additional tax on any unreported income. I always tell my tax clients to email or fax me any IRS correspondence they receive immediately, because the IRS typically gives you 30 days to respond.

However, if you ignore the notice, you receive a 90 day letter to petition the tax court. I always recommend petitioning that tax court to preserve your appeal rights. However in the event you fail to petition the tax court within the 90 days, you can still apply for audit reconsideration.

The first thing I do when a client calls me is to review the CP2000 notice and make sure it is accurate because the IRS sends lots of inaccurate notices to taxpayers. In addition I verify that is actually from the IRS and not from an identity thief. I typically will file an amended return if my client has additional expenses relating to the unreported income or has basis in securities sold that generated the CP2000 in the first place. If the IRS is disallowing a deduction I will send in the documentation to substantiate it. I always try to get the accuracy related penalty abated and am successful most of the time, especially if only one year is involved.

If you receive a notice from the IRS under-reporter unit do not panic. Just contact Gregory J. Spadea at 610-521-0604 from Spadea & Associates, LLC in Ridley Park.

Filed Under: Tax Law Tagged With: , , , , , , ,

Admissibility of Hearsay Evidence at a Pennsylvania Preliminary Hearing

June 11, 2014 by

Preliminary Hearing

Hearsay is an out of court statement offered for the truth of a matter asserted by the party attempting to introduce it into evidence. Generally, hearsay is not admissible at trial because it is considered unreliable given that the speaker was not under oath and not subject to the opposing party’s cross examination. While there are a number of exceptions to the Hearsay Rule, the purpose of this blog is to explain the admissibility of hearsay at a preliminary hearing.

At a preliminary hearing a magistrate judge determines if a crime was committed and if the accused was connected to the crime. The evidentiary threshold at a preliminary hearing is the preponderance of evidence standard which is far below the criminal trial standard of proof beyond a reasonable doubt. However, the preponderance of the evidence standard means that more than likely the defendant was connected to the crime. Procedurally, the preliminary hearing is the first screening of a crime and its function is not to try the defendant which is why it does not require the same high degree of proof or quality of evidence that is required at trial.

The prosecution and defense often use experts in presenting their case but those experts are usually not an issue during a preliminary hearing because the standard is simply if the accused is connected to the crime. DUI cases have caused significant controversy given that the “connection” to the crime is often established through the expert and not just the expert report. The expert report provides information of the accused Blood Alcohol Level (BAC) and the scientific method used to determine it. Defense attorneys have argued that a DUI prosecution requires the testimony of the expert as well as the introduction of the expert report, and without the expert testimony the expert report is inadmissible hearsay even with the lower evidentiary standard at the preliminary hearing. The defense argument is that the connection is the expert explaining the scientific method in the report which indicates intoxication which is the foundation for the charged offense. These arguments are usually made when the prosecution cannot present any police or civilian witness testimony of DUI impairment.

Despite these defense arguments there are several Pennsylvania Superior Court decisions that firmly hold that hearsay evidence is admissible for the purposes of a preliminary hearing. However, the testimony provided at the preliminary hearing form the basis of most pre-trial motions as well witness impeachment and assessing the credibility of testimony at trial. Although few cases are dismissed at the preliminary hearing stage, a strong defense argument often demonstrates the weaknesses in a case. Since the burden of proof at trial is beyond a reasonable doubt, if defense counsel can show the prosecutor the weaknesses in the prosecution’s case that may substantially reduce or eliminate the number and severity of the criminal charges against a defendant. If you need representation at a preliminary hearing please contact Gregory J. Spadea online or call our office at 610-521-0604 of Spadea & Associates, LLC in Ridley Park, Pennsylvania.

Filed Under: Criminal Law, General Tagged With: , ,

What Business Expenses Are Deductible?

April 14, 2014 by

If you are a self-employed sole proprietor or operate an LLC or S-corporation any expense that your business incurs that is ordinary and necessary is deductible under Section 162 of the Internal Revenue Code. Therefore, please list the total spent on the expense categories listed below:

Accounting, legal and professional fees;

Advertising;

Car expense need total miles driven, business miles plus parking and tolls including business log with date, miles driven, business purpose and destination or
total miles driven, actual fuel invoices, auto insurance, repairs and total miles driven and business miles plus parking & tolls;

Fixed Assets – If you bought a vehicle, computer, equipment, office furniture or placed it in service during the tax year, even if you already owned it, bring in the purchase invoice so we can expense it under IRC Sec. 179;

W-3 – Salaries that your company paid to others. List officer and shareholder salary separately;

Employer share of employment taxes like FICA and FUTA;

Commissions or fees paid to other contractors, Get them to fill in W-9 if not incorporated so we can issue them a 1099;

If you already issued them a 1099, bring in the 1096 – showing total independent contractors paid.

Professional Liability Insurance, Workmans Compensation Insurance and Health insurance;

Office Supplies;

Materials or Purchase of inventory for resale;

Travel, Hotel, Airfare and Car Rental;

Meals (need date, place, person entertained and business purpose) Only need receipt if you pay more than $75.00 and have a day timer, If you do not have a day timer or digital calendar (such as Outlook or Google Calendar) then you need a receipt for everything;

Telephone include local, long distance, fax, land lines and mobile;

DSL, cable and internet charges;

Postage;

Continuing education and business seminars and conferences;

Interest expense paid on business loans and provide year end balances;

Rent for office space or equipment;

Utilities like electricity, fuel oil, water or gas.

Prior year PA franchise (Capital Stock) tax from Page 2 of the PA RCT-101;

Prior Year Local Income Tax paid;

Total state sales tax paid if you included it in gross sales receipts.

Remember to never pay any personal expenses from your business bank account but instead transfer them to your personal account. Feel free to contact Gregory J. Spadea of Spadea & Associates, LLC at 610-521-0604, if you have any questions or need your tax returns prepared.

Filed Under: Business Law, Tax Law Tagged With: , , , , , , ,

Why I need an IRA Trust

September 17, 2012 by

Jar with label Retirement Plan
The biggest retirement asset for most people other than their primary residence is their retirement plans. One way to ensure that your children do not mishandle your retirement funds after you and your spouse pass away is to set up an IRA trust as your Plan’s contingent beneficiary. This ensures an orderly transfer of wealth from one generation to the next.

The advantages of an IRA trust are as follows:

1. It allows you to control when distributions are made and the circumstances when they should be made. This also allows the beneficiary to stretch out the payments and pay the least amount of income tax over his or her lifetime. This also allows the IRA Assets to continue growing tax free inside the trust over the beneficiary’s lifetime.

2. The IRA trust assets would be protected from creditors so if your beneficiary is sued the assets in the IRA trust would not be subject to any creditor claims. In addition if your beneficiary gets divorced the IRA trust assets would not be part of the marital estate and not subject to claims by the ex-spouse.

3. You can select an investment advisor to ensure the IRA portfolio remains diversified to maximize the investment returns over your beneficiary’s lifetime.

4. If your beneficiary is disabled and receiving government medical benefits the IRA Trust would not disqualify him or her from continuing to receive benefits.

From a procedural perspective you would name the IRA Trust as a beneficiary of your IRA, and upon your passing the IRA trust would distribute the proceeds of your IRA to your beneficiaries over their lifetimes based on the IRS tables for required minimum distributions. If you were married, you may want to have your spouse be the primary beneficiary of your IRA and the IRA trust could be a contingent beneficiary of your IRA.

The reason this is so important is because a nonspouse beneficiary may not receive funds directly from an inherited IRA and roll them over tax free to another inherited IRA within 60 days, as a surviving beneficiary can. Therefore they must use a direct trustee to trustee transfer to avoid income tax on the distribution. Many beneficiaries do not realize once they take the distribution they will be taxed on the entire amount in the year they receive it. This would be disastrous from an income tax perspective because they will lose the power of tax deferred compounding over their lifetime. Therefore setting up the IRA trust as the Beneficiary avoids this problem.

If your IRA assets exceed $250,000 you should consider setting up an IRA trust to ensure your legacy is are protected and your beneficiaries are taken care of after your gone. Contact Gregory J. Spadea at 610-521-0604 if you would like more information.

Filed Under: Estate Planning, Tax Law Tagged With: , , , , , ,

How to Avoid a Will Contest

September 11, 2012 by

Signing Last Will and Testament
With such a large transfer of wealth passing from the current generation than ever before, it is not hard to imagine that litigation can occur at the passing of a loved one if a beneficiary is left out of the will.   A will contest is defined as a formal objection raised against the validity of a will, based on the contention that the will does not reflect the actual intent of the testator (the party who made the will). Will contests generally focus on the assertion that the testator lacked testamentary (mental) capacity, was operating under an insane delusion, or was subject to undue influence, or fraud or duress. A will may be challenged in its entirety, or only in part.

In order to file an objection against a will a person or party must have standing.  Typically, standing to contest the validity of a will is limited to two classes of persons: 1) those who are named on the face of the will (i.e. any beneficiary); 2) those who would inherit from the testator if the will was invalid.

If an heir is unhappy with the amount they received or didn’t receive under a will, he may contest the will.  It may be impossible to prevent heirs from fighting over your will entirely, but there are steps you can take to try to minimize squabbles and ensure your intentions are carried out. The following are some steps that may make a will contest less likely to succeed:

  • Make sure your will is properly executed. The best way to do this is to have an experienced estate planning attorney assist you in drafting and executing the will. Wills need to be signed and witnessed by two independent parties and notarized and should include a self-proving affidavit.
  • Explain your decision. If all the heirs understand the reasoning behind the decisions in your will, they may be less likely to contest the will. It is a good idea to talk to heirs at the time you draft the will and explain why someone is getting left out of the will or getting a reduced share. Although you should discuss it in person, always state the reason in the will. You may also want to include a letter with the will.
  • Use no-contest clause. One of the most effective ways of preventing a challenge to your will is to include a no-contest clause in the will. However this will only work, if you are willing to leave something of value to the potentially disgruntled heir. A no-contest clause states that if an heir challenges the will and loses, then he or she will get nothing. Therefore, in order to be effective you must leave the heir enough so that a challenge is not worth the risk of losing the inheritance.
  • Remove the appearance of undue influence. The most common method of challenging a will is to argue someone exerted undue influence over the deceased family member. For example, if you are planning on leaving everything to your son who is also your primary caregiver, your other children may argue your son took advantage of her position to influence you. To avoid the appearance of undue influence, do not involve any family members who are inheriting under your will in drafting your will. Family members should not be present when you discuss the will with your attorney or when you sign it. To be totally safe, family members shouldn’t even drive you to the attorney.
  • Prove competency. One common way of challenging a will is to argue the Testator was not mentally competent at the time he or she signed the will. Pennsylvania requires that you be over 18 years of age and be of sound mind. One type of mental incapacity is insane delusion which Courts have defined as a “fixed false belief without hypothesis, having no foundation in reality.  You can try to avoid this by making sure the attorney drafting the will tests you for competency.  The attorney may ask you a series of questions to ensure the Testator understands (a) the amount and nature of his or her property, (b) the heirs and loved ones who would ordinarily receive such property by his Will, and (c) how his Will disposes of such property.  The attorney will record your answers to show you were competent when you signed your will.  The attorney may also recommend you be tested by a doctor who will write a report indicating you were competent when you signed your will.
  • Remove the appearance of undue influence. The most common method of challenging a will is to argue someone exerted undue influence over the deceased family member. For example, if you are planning on leaving everything to your son who is also your primary caregiver, your other children may argue your son took advantage of his position to influence you. To avoid the appearance of undue influence, do not involve any family members who are inheriting under your will in drafting your will. Family members should not be present when you discuss the will with your attorney or when you sign it. To be totally safe, family members shouldn’t even drive you to the attorney.
  • Remove the appearance of fraud. A less common method of challenging a will is for an heir to argue that the Testator was fraudulently induced into signing his or her will. Fraud can occur if the Testator signed a will without realizing it was a will. It could also happen if someone gave the Testator misinformation that caused him or her to change the distribution in the will. It is very hard to prove but it happens.
  • Remove the appearance of duress. Duress involves some threat of physical harm or coercion on the testator by the perpetrator which caused the signing of the Will not to be voluntary.  To avoid this the Testator should be by themselves when they meet with their attorney to draft and sign the will with no beneficiaries present.

Please contact Gregory Spadea at 610-521-0604 if you would like your will reviewed to ensure the likelihood of it being contested is reduced.

Filed Under: Estate Planning Tagged With: , , , , , , , , , ,

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