If you’re looking to buy or sell property, you probably already have a realtor—but you may not have considered the advantages of working with an experienced real estate attorney.
In a recent article for Bob Vila written by Eyet Law’s Jacob Narva in collaboration with Matthew Eyet, the two explain how important it can be to have legal help while buying or selling a home.
You can check out the full article here, but here are a few key takeaways from the piece.
A real estate attorney can help you ensure a smooth closing
Working with a real estate attorney is a good way to ensure that your closing agreement reflects your actual intent. An attorney can assist you in drafting the initial agreement—or they can review the standard agreement to ensure that everything is in order.
As Narva points out, the parties involved in real estate transactions often make adjustments to certain terms, even when the standard documents are used.
“Whenever a buyer or a seller wants to include specific terms—like a partial appraisal waiver, rent-back provision, or timeline requirements—it’s important that an attorney confirm the language used actually reflects what is intended.”
—Jacob Narva, Attorney at Eyet Law
Real estate attorneys can serve several different roles
About half of U.S. states require attorneys to be involved in closing transactions, while other states allow you to choose whether or not you’d like to hire legal representation.
In states that do require the use of an attorney, real estate attorneys may serve as closing attorneys who act as a neutral third party, but they may also represent the seller, the buyer, or both—however, it’s recommended not to have the buyer and seller share the same representation, as this may create conflicts of interest.
Hiring a real estate attorney may actually save you money
Although many real estate transactions go off without a hitch, hiring an attorney can provide important protections against unexpected costs or litigation. Having experienced legal representation on your side can actually save you time, money, and trouble down the road.
“It can be easy to forget the vital role real estate attorneys play. But much like title insurance, on these occasions when something unexpected happens you will be glad you included an experienced attorney in the process.”
—Jacob Narva, Attorney at Eyet Law
Want to know more? We can help
If you’d like to learn more about how an attorney can help safeguard your real estate transactions, check out the full blog here or reach out to our experienced legal team. We’d love to guide you through your options for legal representation moving forward.
COVID-19 has brought significant financial challenges to many communities and caused historic disruptions for businesses. Congress’s relief response includes provisions that run through the tax code. For both individuals and businesses, this means there are some key considerations for year-end tax planning.
Cares Act Impact on Business Taxes
The Coronavirus Aid, Relief, and Economic Security (CARES) Act accelerated the timeline created by the Tax Cuts and Jobs Act (TCJA). In turn, this repealed the Corporate Alternative Minimum Tax (AMT) and allowed corporations to claim all their unused AMT credits in the tax years beginning in 2018, 2019, 2020, and 2021. The CARES Act allows corporations to claim all remaining AMT credits in either 2018 or 2019. This gives companies several different options to file for quick refunds, of which the fastest method for many companies will be filing a tentative refund claim on Form 1139.
Additionally, the CARES Act included a provision allowing businesses to use current losses against past income for more immediate refunds. Net operating losses (NOLs) in tax years beginning in 2018, 2019, and 2020 can be carried back five years for refunds against prior taxes.
Losses from years with lower tax rates can offset income from previous years with higher tax rates, however, carrying back NOL to a specific year may impact the application of other IRS provisions for that year. It’s important to note that this carryback provision is mandatory unless an election is made. To opt-out, a formal election statement must be filed along with a 2020 return or an amended return must be filed for previous years.
Social Security Taxes and the CARES Act
The CARES Act also allows employers to defer paying their 6.2% share of Social Security taxes for the remainder of 2020, and for self-employed individuals to defer payment of certain self-employment taxes. This applies to taxes required to be remitted between March 27, 2020, and December 31, 2020.
The deferred amount is due in two parts with the first half due by December 31, 2021, and the second half due by December 31, 2022. This can provide a liquidity benefit, but the impact on deductions should be considered. Businesses can’t deduct their share of payroll taxes until paid. Therefore, there may be some benefits for paying early to take the deduction in 2020, such as increasing an NOL for the provision benefits discussed above.
PPP Expenses and Taxes
Initially, some states ruled that expenses paid for with PPP funds are not eligible deductions. It was originally unclear whether Congress would agree, but the Consolidated Appropriations Act, 2021 put these concerns to rest and confirmed that otherwise deductible business expenses paid for with a forgiven PPP loan are deductible.
Cares Act Impact on Individual Taxes
For individuals, the CARES Act directed the IRS to issue stimulus checks of up to $1,200 per taxpayer and $500 per qualified child dependent earlier this year. These payments were paid based on 2018 or 2019 tax returns, but are structured as advances of 2020 tax credits. Because of this, the amount received may not match the amount of credit calculated on a 2020 return. If the 2020 credit calculation is less than what was received, there is no requirement to pay it back; however, if the amount received was less than the credit calculated for 2020, it can be claimed as an additional refund.
Additionally, the CARES Act offers two opportunities for charitable taxpayers in 2020. Individuals who do not itemize their charitable contributions will be allowed an “above the line” deduction of up to $300 in 2020. For those who do itemize, the CARES Act increases the limit on charitable deductions to 100% of the individual’s Adjusted Gross Income (AGI) for cash contributions made to public charities in 2020.
Individuals can also exclude up to $2 million (or $1 million if not married filing jointly) of Cancellation of Debt income from qualified principal residence indebtedness that is canceled in 2020 because of their financial condition or decline in value of the residence. Debt canceled after December 31, 2020 can still qualify, only if discharged pursuant to a written agreement entered into prior to January 1, 2021.
The CARES Act allows eligible individuals to withdraw up to $100,000 from qualified retirement plans during 2020 without incurring the standard 10% early distribution penalty. These taxable distributions can be included in gross income ratably over three years. Taxpayers may re-contribute the withdrawn amounts to a tax-qualified plan or IRA at any time within three years after the distribution, with these repayments being treated as a tax-free rollover and not subject to that year’s cap on contributions.
Calculating the CARES Act Impact on Your Taxes
As new bills begin to pass, lawmakers are still considering further stimulus and economic recovery legislation. With new information constantly coming forth, sitting down with an experienced tax attorney or CPA can keep businesses and individuals on track to take advantage of all tax-beneficial opportunities.
Recently, a client came to Eyet Law with an intriguing problem: they had won double-digit millions in the lottery and wanted to accept the funds while remaining anonymous and minimizing tax liability.
It’s not as easy as just submitting your ticket and collecting your winnings, especially in New York and most people don’t know the ‘inside scoop’ on how to do it anonymously. After all, winning the lottery is as unlikely as, well… winning the lottery—and when a phrase is shorthand for “never going to happen,” it’s reasonable not to have a contingency plan. For instance, that’s why airports don’t have flying pigs protocols.
If you do win the lottery, however, what you do next is extremely important. Studies show that over 70% of lottery winners go bankrupt within a few years of receiving their winnings. In fact, there is a whole industry keeping an eye out for prize winners and working to separate them from their new money! To avoid this situation, it is important to get serious right away, to keep your name out of the papers, and to plan for problems before they occur.
Here are some of the steps we took to help this client, as well as what would be wise for other winners to know.
A Study in Luck
So you won the lottery. Congratulations! That’s great news. Depending on the size of the ticket, you may be able to live off your winnings if you plan correctly, especially after you account for interest.
Here’s what you need to know in order to minimize taxes and protect your privacy—and how we helped our client do exactly that.
Don’t sign the back of the ticket right away
If you sign the back of the ticket as yourself, you run the risk of losing out on the ability to create an LLC, which comes with tax benefits and protects your identity. With this client, we made sure to advise them to hold off on signing until we had the LLC established.
Give the ticket to your attorney to reduce the risk of loss
When you have a ticket in your possession, there’s always a chance that you could lose it. If you give it to your attorney, however, any loss would fall under that attorney’s malpractice insurance umbrella, giving you recourse to recover the funds. And before you put a ticket in your bank’s safe-deposit box, be aware that most banks don’t insure against loss from their safe-deposit boxes!
Think about claiming under an entity or having a lawyer claim for you
One option that affords tax savings and privacy protection is to claim your ticket under an entity (like an LLC) and to have your lawyer or a financial advisor claim your ticket as the entity’s representative.
Your attorney can help connect you with a trustworthy financial advisor and protect you from unscrupulous fortune seekers.
There are also tax benefits to claiming in this way. As it stands, the taxes on lottery winnings in New York above $5,000 are steep. You’re looking at a 24 percent IRS withholding and a New York state withholding of 8.82 percent. Depending on the amount you win, that final federal tax doesn’t cap at 24 percent either—withholding can be up to 37 percent!
If you’re a New York City resident, you can expect the government to withhold an additional 3.876 percent in tax. And if you live in Yonkers? Add another 1.477 percent.
All of that adds up to a lot of taxes and a much lower amount you’ll be taking home.
You can limit how much is withheld by claiming your prize through an entity.. While you’ll eventually have to pay the applicable taxes, you’ll be able to collect interest on those funds for an additional year or more depending on when you collect your prize in relation to tax season. Depending on your winnings that can be a significant amount.
Anonymity is possible
Our client has a strong desire to remain anonymous, but New York state has a law that if you don’t participate in the publicity that comes along with winning, you may not be eligible to actually collect.
In this case, our client used our attorneys as their placeholders. We had to go to the highest level of the New York Lottery and Gaming Commission to confirm that accepting the funds on the behalf of the client was legal – they don’t put this information out there directly and it’s not something many people know is an option.
We even went and did the photoshoot for the client, although they didn’t pull out a giant check for us to hold in the name of the anonymous corporation!
We can help
New York state doesn’t make it easy to protect your privacy and minimize tax liability, but we know how this process works. If you’ve won the lottery in New Jersey, New York or Pennsylvania, we can help make sure you accept the winnings according to your wishes, whether it’s for privacy, to reduce tax liability or to make sure the ticket makes its way to the prize commission.
If you’re a lucky winner, contact us to start your future off right!
Disclaimer: The information in this blog post (“post”) is provided for general informational purposes only, and may not reflect the current law in your jurisdiction. No information contained in this post should be construed as legal advice from Eyet Law or the individual author, nor is it intended to be a substitute for legal counsel on any subject matter. No reader of this post should act or refrain from acting on the basis of any information included in, or accessible through, this post without seeking the appropriate legal or other professional advice on the particular facts and circumstances at issue from a lawyer licensed in the recipient’s state, country or other appropriate licensing jurisdiction.
Johnson & Johnson (J&J), the international pharmaceutical company whose headquarters are right down the road from the Eyet Law office, has won a $56 million dollar tax case before the Supreme Court of New Jersey that poses broad implications for tax law interpretation.
The case, the result of a long process of appeals, carries implications for how tax law may be interpreted. It clarifies requirements for New Jersey taxpayers from 2011 to 2020 and, importantly, delivers new insight into how courts might read ambiguous tax laws.
The Background
Johnson & Johnson, headquartered in New Jersey, is insured by Middlesex Assurance Company Limited (MACL). MACL, which is based in Vermont, was established to insure Johnson & Johnson.
MACL was formed solely to provide insurance coverage for Johnson & Johnson. Because of this, they’re categorized as a “non-admitted insurer” in New Jersey, which refers to insurance companies that offer coverage without being licensed to undertake insurance business in that state. As such, they operate under different regulations.
A decade ago, Congress passed the Non-admitted and Reinsurance Reform Act (NRRA) of 2010 which streamlined how non-admitted insurers could be taxed for out-of-state insurance premiums by states.
This move gave the insured’s state of residence the sole right to tax premiums for all coverage nationwide instead of granting tax rights to wherever there was nexus. For Johnson & Johnson, this meant that New Jersey alone could pass laws levying taxes on their out-of-state non-admitted insurance premiums (called an Independent Procurement Tax, or IPT), which they did in 2011.
Initially, Johnson & Johnson followed suit and paid IPT premiums in New Jersey for all nationwide premiums. But, in 2015, they filed for a refund for coverage outside of New Jersey, arguing that amendments did not, in fact, levy taxes on nationwide coverage.
How the Courts Responded
The New Jersey Division of Taxation initially rejected their case, stating that the 2011 amendment wasn’t clear and that the legislative intent appeared to be for IPT to apply to all non-admitted insurance acquired by New Jersey entities nationwide as per the NRRA.
Johnson & Johnson responded by appealing to the Superior Court of New Jersey, Appellate Division. The Appellate Division determined that:
The statute didn’t clearly levy IPT for out-of-state coverage
Legislative intent didn’t clearly show otherwise
In situations of ambiguity, courts should lean in the favor of taxpayers.
Although a portion of the New Jersey amendment expanded the law’s scope to all nationwide coverage, the law only specified that this applied to surplus lines policies — a type of policy that is historically taxed like other non-admitted policies in New Jersey but which isn’t the type of coverage Johnson & Johnson acquired from MACL.
The Division of Taxation and the Department of Banking and Insurance (DOBI) countered by appealing to the Supreme Court of New Jersey. Their argument stated that the amendment should be read to apply to all non-admitted coverage, not just surplus lines coverage, and that when in doubt the courts should give deference to their regulatory interpretations. The Supreme Court followed the Appellate Division’s reasoning and rejected this argument.
Unpacking the Argument
“Surplus lines policy” isn’t defined in statutes, though “surplus lines insurer” is: any insurer that offers insurance regulated by the surplus lines law. Because non-admitted insurance is typically regulated like surplus lines insurance, the laws governing it are located in a section of the surplus lines law, and so this definition of “surplus lines insurer” arguably includes insurers who offer other non-admitted insurance as well.
Additionally, the laws governing surplus lines coverage had also been amended elsewhere to include nationwide premiums. As a result, interpreting the statute in question to apply to just those taxes would be to read the new language as duplicative, and therefore a legal nullity. Courts usually avoid these interpretations, given that they are ostensibly not what the legislature intended.
Altogether, the Supreme Court and Appellate Court found that this was not enough to determine the statutory language was unclear and the language clearly applied the nationwide scope of the tax to “surplus lines policy” premiums only. However, the courts held that even if the law was unclear the tax still wouldn’t apply, as the taxpayer should get the benefit of the doubt in such circumstances.
The Tax Takeaway
For most taxpayers, the key takeaway here is the guidance on how courts evaluate cases when tax statutes are unclear. In this situation, the courts determined the relevant statutes to be clear. However, another principle came into play: when in doubt, find in the taxpayer’s favor rather than defaulting to the Division of Taxation’s interpretations.
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