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Lane
Lane, JD, CFP, MBA, CRPS
Category: Tax
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Experience:  Juris Doctorate, CFP and MBA, Providing Financial & Tax advice since 1986
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I have owned my own company (a sole proprietorship) for 12

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I have owned my own IT Consulting company (sole proprietorship) for 12 years now. My company is based in Iowa. I have a client in Iowa that I work onsite 1-2 days per week as well as additional time remote (total of 50 hours/week). I recently landed a 3 year sub-contract for a client in Wisconsin. I will be required to travel/be onsite 3-4 days per week in Wisconsin (40 hours/week), but will still maintain my Iowa based business, reside in Iowa and continue to work with other Iowa based clients. Since the duration is longer than 1 year. Does this mean I am not able to expense travel to Wisconsin? This seems odd if that is the case since the client requires me to travel to their site. If I am able to expense the travel, it would be more cost effective to lease an apartment then to stay in a hotel. Will leasing an apartment in Wisconsin muddy the water? Can I still expense a lease apartment in Wisconsin as a travel expense?

Submitted: 1 year ago.
Category: Tax
Expert:  Lane replied 1 year ago.

NPVAdvisor :

Please don't shoot the messenger here ....

NPVAdvisor :

IRS puts is this way " ... is determined as indefinite, if the [work project for your business or] assignment [for an employee] is in excess of one year, or if it is realistic to expect the assignment will be in excess of one year. If you expect the assignment to be longer than one year, travel expenses are not deductible even if the time period ends up being less.

NPVAdvisor :

THis makes this non deductible

NPVAdvisor :

See


NPVAdvisor :

Qualifying Expenses


Travel expenses paid or incurred for an indefinite work assignment are not deductible.


A work assignment is determined indefinite when the work assignment is in excess of one year, or if it is realistic to expect the assignment will be in excess of one year. If you expect the assignment to be longer than one year, travel expenses are not deductible even if the time period ends up being less.


If you can reasonably expect the assignment to last less than one year, and that expectation changes to a period of time longer than one year, travel expenses become nondeductible when the determination is made. (from: http://www.1040.com/federal-taxes/deductions/employee-business-expenses/business-travel-expenses/ )

Customer:

This seems to make sense if I was an employee working a single job. A majority of my business will continue to be Iowa, so I wasn't sure how the IRS could state that I reside in two different states at the same time. I was hoping the rules were different for a business as opposed to an employee.

NPVAdvisor :

"Travel expenses are the ordinary and necessary expenses incurred while traveling away from your home for your business, profession, or job. You are traveling away from your home if duty requires you to be away from the general area of your tax home for a period longer than one day's work, and you need to get sleep or rest while you are away."

NPVAdvisor :

Sorry, ment to stae first that this (what i just pasted in from IRS, is how the define the travel expense

NPVAdvisor :

They call it duty for a business owner and assignment for an employee, but the rules are the same

NPVAdvisor :

As a head-up ... have you checked into the state income tax issues?

NPVAdvisor :

You'll probably need to file a non-resident return for WI (just for the WI source income), BUT Iowa DOES have a credit for taxes paid to another state

NPVAdvisor :

Still with me?

NPVAdvisor :

Ok, I'll move us to the "Q&A" mode ... maybe that will help ... before I do, you should be aware of this: from pub 463, mentoned above)

NPVAdvisor :

Going home on days off. If you go back to
your tax home from a temporary assignment on
your days off, you are not considered away
from home while you are in your hometown.
You cannot deduct the cost of your meals and
lodging there. However, you can deduct your
travel expenses, including meals and lodging,
while traveling between your temporary place of
work and your tax home. You can claim these
expenses up to the amount it would have cost
you to stay at your temporary place of work.
If you keep your hotel room during your visit
home, you can deduct the cost of your hotel
room. In addition, you can deduct your expen-
ses of returning home up to the amount you
would have spent for meals had you stayed at
your temporary place of work.

NPVAdvisor :

Still looking at this one .... given that you are only going to be there 3 days per week, you may bae able to make a case that your tax home has not changed and that this is not the same as an assignment

NPVAdvisor :

Hang with me here:

NPVAdvisor :

First, see this:




Tax Home





To determine whether you are traveling away from home, you must first determine the location of your tax home.


Generally, your tax home is your regular place of business or post of duty, regardless of where you maintain your family home. It includes the entire city or general area in which your business or work is located.


If you have more than one regular place of business, your tax home is your main place of business. See Main place of business or work , later.


 

NPVAdvisor :

Further:

NPVAdvisor :

Main place of business or work. If you have more than one place of business or work, consider the following when determining which one is your main place of business or work.





  • The total time you ordinarily spend in each place.




  • The level of your business activity in each place.




  • Whether your income from each place is significant or insignificant.




NPVAdvisor :

The publications (nor the code itself) really covers your situation, exactly ... especially given 2 days working for the other client and weekends at home as well

Customer:

yes - it seems that my tax home would still be in Iowa since I will be residing there 4 days a week. I always work 7 days/week - so a majority of my work hours will continue to be performed in Iowa. Income will be slightly more in Iowa, but not a lot. Seems like this would be a common issue for consulting companies. 1 year + project are not uncommon. These projects are never permanent though.

NPVAdvisor :

Yes, I agree, the problame is that in the publication AND in the code, all the examples deal with start and stop times, rather than this 3 away/4 at home situation

NPVAdvisor :

Here's the closest thing that they give (and the underlined portion is a little troubling)

NPVAdvisor :

Determining temporary or indefinite. You must determine whether your assignment is temporary or indefinite when you start work. If you expect an assignment or job to last for 1 year or less, it is temporary unless there are facts and circumstances that indicate otherwise. An assignment or job that is initially temporary may become indefinite due to changed circumstances. A series of assignments to the same location, all for short periods but that together cover a long period, may be considered an indefinite assignment.

NPVAdvisor :

you have them at a "MAY" be considered ...

Customer:

I caught that too - leave it to the IRS to be clear and concise. If I am able to expense, does expensing an apartment versus a hotel make any difference to the IRS?

NPVAdvisor :

You are so squarely on the line here that your renting an apt could very well be what gives them the ammunition to determine this as an indefinite duration... where the hotel would support that this is a less than one week business travel at a time

NPVAdvisor :

Does the income from the other client approximate the income from the WI contract ... over the same amount of time, say three months?

Customer:

Income in Iowa will be slightly higher, but not significant.

NPVAdvisor :

The way this would play out ... should you record as travel expense, is that (on an audit) you'd be showing them hotel and airfare expenses....on the income? I think that IS significant

NPVAdvisor :

MUCH harder for them to make the case that your tax home has changed when that travel necessary job isn't MOST of your income

Customer:

Correct. This will be the case for the foreseeable future.

NPVAdvisor :

Is there a way to set things up so that the travel is more sporadic (or you stay longer at one time with more time in between)?

Customer:

Ironically, the work is for the State of Wisconsin. Their schedule is fairly fixed, so I won't have a lot of flexibility.

NPVAdvisor :

Is there anything in the contract about part of he compensation being to compensate for travel?

Customer:

It is stated that all travel expenses are to be included within the rate that I bid. Travel cannot be expensed separately.

NPVAdvisor :

If you get audited, that's not gonna help (analogy is an employee deducting travel expenses that are reimbursed)

NPVAdvisor :

Back to the other side of the coin, this is NOT an indefinite time period, it's a fixed contract .... is this something with a likelihood of renewl after the three years?

NPVAdvisor :

I just consulted with my tax law professor from law school (I'm CFP and have been providing tax and other financial advice since 1986, but am in my last term of law shcool as well, specializing in tax, estate and business law). ... She says this: "a front line IRS agent will say this is indefinite, because it's longer than a year, and the travel expense is not deductible"

NPVAdvisor :

I think you have the extent of my wisdom :) ... Sorry to be the "messenger"

Customer:

It is a fixed 3 year contract with no extension, but you are correct - it exceeds 1 year.

NPVAdvisor :

you could appeal it ... but the travel being included as part of the bid, longer than one year, and the regularity of it will be a had case to make

NPVAdvisor :

so sorry

Customer:

You are confirming what I expected. I really appreciate your assistance!

NPVAdvisor :

Thanks, XXXXX XXXXX have all the facts and maybe "see around some corners."

NPVAdvisor :

f this HAS helped, I would appreciate a feedback rating of 3 (OK) or better … That's the only way they will pay us here.


HOWEVER, if you need more on this, PLEASE COME BACK here, so you won't be charged for another question.

Customer:

sounds good - thank you again!

NPVAdvisor :

congratulations on the contract! you're very welcome

Expert:  Lane replied 1 year ago.

Jason,

Just wanted to remind you that all of the link I provided will stay active here.

Feel free to bookmark and come back for reference

Enjoyed working with you

Lane
Expert:  taxmanrog replied 1 year ago.

Jason:

I just wanted to clarify something. You are self-employed, correct? Your business and other clients remain in Iowa? Then the expenses ARE deductible as ordinary and necessary business expenses. Under Internal Revenue Code (IRC) §162, you are allowed to deduct all expenses incurred in the pursuit of income.

The rules that the expert above explained, while correct for employees, only apply to employees!

IRC §162 says :

(a) In general There shall be allowed as a deduction all the ordinary and necessary expenses paid or incurred during the taxable year in carrying on any trade or business, including—


(1) a reasonable allowance for salaries or other compensation for personal services actually rendered;


(2) traveling expenses (including amounts expended for meals and lodging other than amounts which are lavish or extravagant under the circumstances) while away from home in the pursuit of a trade or business; and


(3) rentals or other payments required to be made as a condition to the continued use or possession, for purposes of the trade or business, of property to which the taxpayer has not taken or is not taking title or in which he has no equity.

In determining whether you are away from your tax home, ALL facts and circumstances must be considered! You return to Iowa after the few days in Wisconsin. You continue to work on many other (a majority, you said) of your clients from Iowa, you are registered to vote in Iowa, you will probably keep your homeowners property tax break in Iowa, you will file an Iowa resident tax return, so you will be considered an Iowa resident.

Under the Regs, your tax home is generally your "regular place of business or post of duty, regardless of where you maintain your family home. It includes the entire city or general area in which your business or work is located. If you have more than one regular place of business, your tax home is your main place of business, and your tax home is your main place of business.

Therefore, under this rule, since the Wisconsin client is only one of several clients, your office is maintained in Iowa even when you are out of state, and you continue to work on the majority of your other business in Iowa, your tax home remains in Iowa, and your Wisconsin trips are fully deductible.

I actually just went to US Tax Court with a client over this very issue, so I could say I have become an expert in the area, whether I wanted to or not!

The advise that the prior expert gave you was 100%, but for employees, who generally are assigned to long-term contracts and want to deduct their expenses.

Customer: replied 1 year ago.


That's fantastic! Thank you for the reply. Will leasing an apartment be an acceptable expense? Or would it be safer to incur the higher expense of a recurrent hotel?

Expert:  Lane replied 1 year ago.


Jason,

I don't believe the intervening expert read our entire chat.

I would be VERY careful here, and discuss this with a CPA or tax attorney that you trust.




Let's review:

(1) Your contract requires that you be in Wisconsin 3 to 4 days per week.

(2) You have one other client

(3) IRS will say that if you are working 3 to 4 days per week in Wisconsin on this government contract, that leaves 1 to 2 workdays for your only other client.

(4) You said that this would represent at least 1/2 of your income and also made the statement that the income from the other client was not significant.

(5) IRS defines the applicability of the travel limitations to ANYONE traveling for their business, their profession or their job (NOT JUST EMPLOYEES)

(6)Upon audit, IRS will see that the contract, as you mentioned, includes in the total bid, travel costs.



I know you would like someone to tell you what you want to hear, but if you'll read the response above, you'll see that some of the assumptions made show that our total conversation was not read.

Tread carefully here.

Finally, renting an apartment in Wisconsin will not help your case.

Customer: replied 1 year ago.

Thanks again for the response.


 


Just a couple clarification points:


a) Contract will require me to be onsite 4 days per week for the remainder of 2013 and will then subside to 3 days per week for the remainder of the contract.


 


b) I actually have a number of clients in Iowa. The total income from them is greater then the income from the contract in Wisconsin, but not by a lot. I have also been doing business in Iowa for 12 years and plan to continue to do business in Iowa well after the Wisconsin contract will end.


 


c) I am working on having the contract reworded to state that expenses are not reimbursable and are the responsibility of the sub-contractor.


 


d) I work 7 days/week - so once I am down to 3 days in Wisconsin, a majority of my work will be performed in Iowa.


 


Not sure any of that really matters though. Sounds like the key question is whether the IRS will hold my self-employed status to the same travel limitations as an employee. Again, seems like every consulting company in this country would have this same issue. Doing business in other states on long term contracts is a fairly common practice for IT consulting companies.


 

Expert:  Lane replied 1 year ago.

I feel a little better about saying it's doable now ... I could have sworn that you said you only had the one other client.

I DO NOT think that it's nearly so cut and dry as self-employed vs employee.

We've both seen the IRS definition several times "business, profession or job"




If the picture was as painted by the intervening expert above ...

"You return to Iowa after the few days in Wisconsin. You continue to work on many other (a majority, you said) of your clients from Iowa."

... I'd be more comfortable saying that it's all fully deductible.




But we both know that's not an accurate picture:

But a government contract that for at least the first half of the first year requires you be there 4 days per week, every week?

It's not that simple .... just as the expert above said, "...facts and circumstances..."



Again, I'd err on the conservative side. Go see a good tax attorney on this. It'll be worth it either way.

If you want to check back here, I'm going to do a little research into both the case law and statue.

...I don't plan on resting until I see the answer ... and my professor tells me it'll be in tax court and supreme court rulings. We already know what the publications (and the other green koolaid says)

Hang with me on this on if you would.



I'll get you the real answer ... and it won't be anecdotal


Lane

Expert:  taxmanrog replied 1 year ago.
Jason, I have been corresponding with Lane, and I still feel that you can deduct the expenses of traveling. I would be more comfortable with you staying in a hotel, as rented apartments often indicate long term intent to remain.

You said in your first exchange that you will have a "majority" of your hours in Iowa, and that the Iowa income would be higher, even slightly (and as you are self-employed you always have the opportunity to increase your Iowa income with your other customers), and I am assuming that you will maintain your office/work location in Iowa, and all that entails. This all indicates that your primary business location is in Iowa.

I am not an attorney, but I have been a practicing CPA (Masters in Tax, Accounting, and an MBA, former "Big 8", and I teach Tax at the Masters level) for 28 years, working with literally hundreds of transient construction workers, and have been dealing with this very issue all along. I currently live in Illinois, but was a Wisconsin resident for many years and still have family there, so I know the state law there as well. As a CPA, and I told Lane this, our job is to make sure that you pay the lowest possible tax, not be conservative and be the IRS' collection agents. A famous US Federal Court Judge, Judge Learned Hand, once said "Any one may so arrange his affairs that his taxes shall be as low as possible; he is not bound to choose that pattern which will best pay the Treasury; there is not even a patriotic duty to increase one's taxes". It is not only legal, but the right thing to do, to pay as little tax as legally possible.

As a tax adviser, we need to tell you to take actions that are black and white and clear in the law. However when the law is not clear, it is our job to work with you to pay as little tax as possible and take advantage of the situation. As is the case here! I tell my clients "give me gray and I will run all day!", meaning that if the law is not clear, and I can find a favorable position, I will take it.

In order to avoid penalties, the IRS requires a "more likely (to succeed) than not" standard. That means a 50.0001% chance. I feel that in your case, you have easily exceeded this, so you could take the deduction, and in the event, however unlikely, that you are audited, the worst outcome you could face is loss of the deduction, and you would have to pay interest, no penalties.

I have a meeting tomorrow but as I told Lane, I just finished a case very similar to this in the federal 7th District US Tax Court (Chicago, same as you are in). I will call the Chief Counsel's office tomorrow and get the names of the cases that she and I were using. My facts were almost the same, except the taxpayer lived in Indiana and worked in Illinois. I will try to post something tomorrow evening.

In short, given your fact pattern, I see NO REASON that the deduction should not be allowed for you. If you came to me at tax time with this fact pattern, I would have no problem signing the return.

Thanks!

Roger
Customer: replied 1 year ago.


I can't even begin to express how grateful I am for the assistance the two of you have provided! The information is invaluable. Posting the names of those cases would be very helpful. I'll keep them on file in the unlikely event that I do get audited. It is unfortunate that the tax laws are so confusing, but I guess it is all that we have to work with.


 


Thank you again!

Expert:  Lane replied 1 year ago.

Hi Jason

Almost there ... Just broke out of a meeting.

Can you check back around 4;00 ea.

Should have something by then

Thanks
Lane
Expert:  Lane replied 1 year ago.


Hi Jason,

Following, here, you will find several cases that relate to your situation.

Honestly, in MY professional opinion, we are right back where we started; Based on the facts you've provided, you have a case to make. (You are squarely on the line).

A front lines agent will deny, saying that your contractual requirement to be in WI 4 workdays per week, effectively changes your tax home ... (especially when we add to that the fact that you have NO requirement - or maybe one day you said - and IS that a REQUIREMENT of the work?)to be in IOWA.

They will make a strong case that although you may not have changed your residence, you will have changed you TAX home, simply by fulfilling the terms of your contract.

These are the cases - all tax court cases- that have been certified as good law (not overturned) by West.

The last paragraph, however is the most troubling; the applicable revenue rulings.

Finally, I completely disagree that ANY of this turns on your status as a sole proprietor or an employee. The fundamental definition - throughout case law, statute law and the IRS publications that we have looked at above - all start with the same declaration that this applies to business, professions and employees of business.

There is a spurious (look it up, its important) relationship here; a business person having many clients, in many locations, who does most of his business in one place and travels to WI sometimes to see his (EVEN HIS BEST) client would probably have no problem making a case for deducting the travel expenses. But those are no the facts here.

The fact that this person was a business owner is not causal. It's not the fact that he is a business owner that makes the travel deductible (that is a spurious relation) It's the other facts; i.e., how much of his business is there, the regularity of his being there, and the fact that he's not required to be there MOST of the week on a regular basis for three straight years.




Here are the cases: (and again, pay particular attention to the last sentence in the last paragraph pf revenue rules:

There is an exception to the general rule that a taxpayer's tax home is his or her principal place of employment. Peurifoy v. Commissioner, 358 U.S. 59, 60, 79 S.Ct. 104, 3 L.Ed.2d 30 (1958). The taxpayer's tax home may be the taxpayer's personal residence if the taxpayer's employment away from home is temporary. Id.; Mitchell v. Commissioner, T.C. Memo.1999–283. On the other hand, the exception does not apply and the taxpayer's tax home remains the principal place of employment if the employment away from home is indefinite. Kroll v. Commissioner, supra at 562.
Stockwell v. C.I.R., 93 T.C.M. (CCH) 1347 (Tax 2007)

Unless taxpayer has some business, rather than a personal, reason to be living in two places, he cannot deduct, as traveling expenses incurred while he is “away from home” in the pursuit of a trade or business, expenses that he incurs traveling to and living in the area where he works as result of his decision not to relocate to that area. 26 U.S.C.A. § 162(a)(2)
Wilbert v. C.I.R., 553 F.3d 544 (7th Cir. 2009)

Taxpayer is reasonably expected to locate his “home,” for tax purposes, at his major post of duty, so as to minimize amount of business travel away from home that is required; decision to do otherwise is motivated, not by business necessity, but by personal considerations, and should not give rise to greater business travel deductions. 26 U.S.C.A. § 162(a)(2).
Wilbert v. C.I.R., 553 F.3d 544 (7th Cir. 2009)


Commuting expenses that taxpayer incurs in traveling between his home and workplace, regardless of length of commute, are not traveling expenses incurred while taxpayer is “away from home” in the pursuit of a trade or business, as required for taxpayer to deduct these expenses in computing his taxable income under the Internal Revenue Code. 26 U.S.C.A. § 162(a)(2).
Wilbert v. C.I.R., 553 F.3d 544 (7th Cir. 2009)



Purpose of the deduction for expenses incurred away from home is to alleviate the burden on the taxpayer whose business needs require him or her to maintain two homes, and therefore incur duplicate living expenses, but the duplicate costs are not deductible where the taxpayer maintains two homes for personal reasons. 26 U.S.C.A. §§ 162(a), 262(a).
Ugwuala v. C.I.R., 105 T.C.M. (CCH) 1640 (Tax 2013)
Taxpayer's tax home, for purposes of the Internal Revenue Code (IRC) section permitting income tax deduction for expenses incurred while away from home, may be the taxpayer's personal residence if the taxpayer's employment away from home is temporary, but that exception does not apply, and the taxpayer's tax home remains the principal place of employment, if the employment away from home is indefinite. 26 U.S.C.A. § 162(a)(2).
Ugwuala v. C.I.R., 105 T.C.M. (CCH) 1640 (Tax 2013)


Revenue Ruling 83-82, 1983-1 C.B. 45, provides that, for purposes of the deduction for travel expenses under section 162(a)(2) of the Code, if the taxpayer anticipates employment away from home to last less than 1 year, then all the facts and circumstances are considered to determine whether such employment is temporary. If the taxpayer anticipates employment to last (and it does in fact last) between 1 and 2 years, Rev. Rul. 83-82 provides a rebuttable presumption that the employment is indefinite. The taxpayer may rebut the presumption by demonstrating certain objective factors set forth in the revenue ruling. For employment with an anticipated or actual stay of 2 years or more, Rev. Rul. 83-82 holds that such employment is indefinite, regardless of any other facts or circumstances.
Rev. Rul. 93-86, 1993-2 C.B. 71 (1993)

Lane






Expert:  Lane replied 1 year ago.


Hi,

Just checking back in.

If you can get someone (a good CPA or tax atty) to look at this, - take the citations with you - I think you're in a pretty good place to try to make the case.

But, again this is not cut and dry.

Maybe, if nothing else, use this to think through how you want to have them draft the contract. (Not delineate that you have to spend the 4 days/wk there, etc)


Positive feedback appreciated ... (That's how we get paid here)

BUT if you have more questions, come back here, so you won't be charged for another question.

Let me know,

Lane
Lane, JD, CFP, MBA, CRPS
Category: Tax
Satisfied Customers: 4500
Experience: Juris Doctorate, CFP and MBA, Providing Financial & Tax advice since 1986
Lane and 5 other Tax Specialists are ready to help you
Customer: replied 1 year ago.


Thanks Lane, I really appreciate all of your assistance on this! It was very informative. I am in the process of redrafting the contract based on all of your input and will then run it by a CPA. I am very grateful for all that you have done!

Expert:  Lane replied 1 year ago.

No problem, this was an interesting case..


Good luck with

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JD, MBA, CFP, CRPS
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Juris Doctorate, CFP and MBA, Providing Financial & Tax advice since 1986