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As you are already aware, both Silicon Valley Bank and Signature Bank have entered into receivership programs from the federal authorities. Last weekend was a long and daunting one. Companies banking with these institutions were nervous about their unsecured deposits, which were necessary to meet payroll and other basic business functions. The Federal Reserve stepped in, took over the operations of both banks and announced a new program called the Bank Term Funding Program (BTFP) to try and quell the flood of withdrawals from other regional banks. This program allows banks to pledge certain assets that have lost market value due to the dramatic increase in rates as a result of Federal Reserve tightening, which began this time last year.

How much the Fed will be able to cover is still unknown. Should we consider all bank deposits guaranteed, even above the official $250,000 threshold? Will they keep this program for all future bank failures?

Besides the two banks previously mentioned, along with Silvergate – which was shut down earlier last week – there are many other banks in the limelight. Many publicly traded regional banks’ stock prices were down 50% or more on Monday alone – and the market is saying that this is only the start.

The biggest concern is that things are moving extremely fast. Just last week Wednesday, Federal Reserve Chair Jerome Powell testified in front of Congress stating that they aren’t seeing any issues in the banking world from the rate-hiking campaign they have been on over the last year. Since then, three banks with hundreds of billions of dollars of assets had to be bailed out!

So, what does this mean for us now? We believe this is a prudent and opportune time to rethink where and how we hold cash deposits. There are the large, ‘too-big-to-fail’ banks that many consider as safe as some government programs. Then there are the local regional banks that each bring along some benefits. The larger institutions offer safety to your assets, while smaller banks can give you higher yields, certain services and respect that only Fortune 500 companies get at the larger banks. The issue is that typically, these two are mutually exclusive. It’s rare to have safety and liquidity, along with higher interest, at the same institution.

Our wealth management partners at Equinum would like you to consider a third option – U.S. Government treasury bonds held in a brokerage account. Not only does this offer both security and higher yields, but it also offers tax advantages in some cases as well. Government treasures are backed by the full faith and credit of the United States Government. This is an assurance that supersedes the ‘too-big-to-fail’ status of some banks, and is on par with FDIC insurance as it relates to security. On top of this, yields are currently in the 4.5% range for short term treasuries. Obviously, for core banking functions and payroll processing, you will still need to have banking relationships. But for larger balances not needed for day-to-day operations, it’s imperative to consider where these assets are being held.

Keep in mind that there’s a key difference between assets held in a bank account versus those in a brokerage account. When you deposit $1,000,000 in a bank account, the bank takes most of that cash and invests the money into other things – mostly in new loans or existing fixed income investments. Your money is effectively mixed together with all the other bank depositors and invested by the bank. The bank has certain requirements as to what percentage of deposits need to be liquid, but that number is really small – currently just 10%. There are other ratios and stress tests that banks must adhere to, but as we all see with last week’s failings, there are obviously still risks out there.

Contrast this with brokerage accounts: When you hold an asset in your brokerage account, it’s in your name. You own the shares of the companies you invest in and can vote your ownership the way you want. You own the bond and receive the interest payments. Each respective client’s assets are in a segregated account held at the custodian in the client’s name. Even if something were to happen to the custodian, client assets are protected and secure. Even creditors would have no claim on client assets.

Each family and company’s situation varies – there’s no silver bullet to cover all circumstances. This is just something to consider in the current unique situation.

Always feel free to reach out to us or to our partners at Equinum.

This material has been prepared for informational purposes only, and is not intended to provide, nor should it be relied upon for, legal or tax advice. If you have any specific legal or tax questions regarding this content or related issues, please consult with your professional legal or tax advisor.

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Real Estate Right Now is a video series covering the latest real estate trends and opportunities and how you can make the most of them. This episode discusses a tax-friendly way to maximize your charitable donations – by donating appreciated property.

Watch the video:

Donating appreciated property to a charitable organization that you care about is not only a do-good, feel-good undertaking; it also offers valuable tax benefits. When you sell a real estate property and donate the proceeds, your earnings are subject to capital gains tax. If instead, you donate that same property, you are free from capital gains taxes and the charity gets a higher-value donation. It’s a win-win.

A second benefit is realized when a real estate owner donates appreciated property held longer than one year. Appreciated long-term assets – such as stocks, bonds, mutual funds, or other personal assets like real estate that have appreciated in value – qualifies the donor for a federal income tax charitable deduction. Generally, this deduction is for the full fair market value of the property (or up to 30% of the donor’s adjusted gross income). If the property is held for less than a year, an owner can still benefit by deducting the basis of the property. Since the calculation is based on fair market value, it is highly recommended to get a qualified appraisal on the property so that the donor can substantiate its value if challenged.

What happens if the property is mortgaged? That debt is taken into account when calculating the deduction. The donation of the property is divided into two parts. The portion of the fair market value representing the mortgage is treated as a sale, and the equity portion is treated as a donation. The adjusted basis of the property will be prorated between the portion that is ‘sold’ and the portion that is ‘donated.’ The calculations are often complex, so don’t try this at home! Consult with an experienced tax advisor when donating a mortgaged property for the most accurate computation of your tax benefits.

The double benefits of donating appreciated property – a fair market value deduction and avoidance of the capital gains tax – makes donating to causes you care about both a generous and tax-efficient way to support a charity.

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As an investor, it’s easy to fall prey to “recency bias” – the tendency to base investment decisions on recent market performance rather than taking a broader and more forward-looking perspective.

Fighting the last war is a natural human tendency that results from our innate desire to find patterns and make sense of the world around us. But, in the world of investing, this can be a dangerous mindset to adopt. For example, after the 2008 financial crisis, many investors rushed to allocate billions of dollars to so-called “black swan” strategies that were designed to protect against rare and extreme events. This reaction was misguided, though. It came after the feared black swan, and at that point, was a useless strategy.

A more drastic example? A study conducted by Fidelity Investments on their flagship Magellan fund, during Peter Lynch’s famed tenure, from 1977-1990. His average annual return during this period was 29%, as compared to 14.47% of the S&P 500 index. This is a remarkable return over the 13-year period and made him one of the best investors ever. It was clear that investors were aware of the fund’s stellar performance as inflows made it one of the largest mutual funds of its time. Given that amazing performance, you would expect that Magellan Fund investors got really rich during Lynch’s tenure. Shockingly, a study by Fidelity Investments found otherwise. The average investor lost money under Lynch’s leadership. Rub your eyes and read that again: The average investor lost money in the Fidelity Magellan fund under Peter Lynch’s tenure during a period of time when the fund returned around 29% annually. How did the average investor lose out on Magellan’s success?

Markets swing up and down. When the market went up, the Magellan fund rose even higher. This excited and enticed investors who rushed to invest. But when the market and the fund declined, investors immediately sold. At every robust period, investors moved money into the fund, and at every decline, they sold – with Magellan’s value swinging lower than before. Recency bias killed Magellan’s performance.

Similarly, in the current market environment, investors are reacting to what worked in 2022, without considering whether those strategies will continue to be successful in the future. To avoid the pitfalls of fighting the last war, investors must adopt a progressive approach. This means taking a longer-term view of the investment landscape and considering how trends and risks might evolve over time. By focusing on the future, investors can avoid getting caught up in short-term market movements and can make better-informed investment decisions.

Be aware of this tendency, and look out of the windshield as opposed to the rear-view mirror. You’ll make more knowledgeable investment decisions and avoid getting caught off guard by unexpected events. You won’t get caught up in the latest market fads. Instead, you’ll be primed for long-term financial success.

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A lack of solid documentation is one of the most common mistakes employers can make when addressing an employee’s promotion, performance, behavior, or discipline issue. Not properly documenting, or not documenting at all, can hurt employers and employees in several ways. The value of good documentation is that it helps leaders provide useful feedback to employees, while also tracking both positive performance and areas of improvement. Documentation can make or break a manager’s ability to discipline, terminate, fairly promote, reward, and recognize employees.

Documentation is key to appropriate and effective disciplinary action. Although most employees never require discipline, some exceptions can occur, and it is useful to have a method that objectively, accurately, and fairly documents employee performance. Perhaps most importantly, solid documentation is critical should a terminated employee bring discrimination or other employment-related claims against the company.

One way to appropriately document workplace activities is the FOSA method. Identifying and documenting Facts, Objectives, Solutions and Actions (FOSA) helps ensure a fair and accurate recollection of events. The FOSA method helps keep a reliable record of employee performance, while also serving as a guide for managers when meeting to discuss an employee’s performance. Properly identifying the FOSA of every incident ensures that decisions are made correctly and that the employee clearly understands the expectations and steps to improve their performance.

Facts: Include specific facts explaining the who, what, where, when, and how. When recording the facts, keep them specific and focused on behavior, avoiding labels or attitude. Behavior is something that can be observed, whereas attitude is interpreted. Be careful not to interject your own opinions, emotions, or judgments. Include any information relating to dates, times, and previous discussions with the employee. For example, John increased sales by 7%, which exceeded his previously established goal of 5%. Michelle was 15 minutes late to work seven times in January.

Objectives: Objectives are your expectations. These can include performance expectations, work habit expectations, attendance and more. It can also include the impact of an employee’s behavior on peers, the organization, coworkers and customers. Define a specific behavior or result for the employee in measurable terms against which you (and they) can gauge performance.

Solutions: Solutions are ideas and suggestions in the form of assistance or coaching that can be offered to the employee to help him or her solve the performance problem. Examples of solutions include training, coaching, education or providing resources. The solutions offered should be designed to help the employee reach their objectives. Remember to include the employee when developing solutions because they may be able to come up with alternatives that you may not have considered. It will also help the employee become part of the solution while increasing accountability and a sense of ownership.

Actions: Actions are the steps in implementing the solutions. This is an important component because the actions communicate the importance of the situation and your commitment to helping the employee resolve the problem. In discipline situations, actions are the consequences for the employee if they do not improve their performance. The actions should clearly outline what will happen if the objectives are not met. When highlighting positive performance, the actions may be outlined as accomplishments or the positive impact that the incident had.

Do not put off documenting employee performance; be sure to write down the incident right away. Do your best to use objective terminology and stay away from vague language like “bad attitude” or “failure to get along with others.” Also, do not use terms such as “always” and “never,” as in, “Joshua never turns in his reports on time.” Using these types of absolutes without being 100% certain will undermine your credibility. Vague phrases that are unsupported by objective facts are almost as bad as not documenting at all.

Always remember that it is the responsibility of business leaders to create an environment of support, not fear. Most employees want to do a good job, and a good leader looks for the best in their employees.

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Unless 501(c)(3) organizations prove they’re publicly supported, the IRS assumes they’re private foundations. The distinction is important because publicly supported charities enjoy higher tax-deductible donation limits and generally are exempt from excise taxes and related penalties.

The tax code recognizes several types of publicly supported organizations, but most 501(c)(3) charities fall into one of two categories. The first, Sec. 509(a)(1) organizations, primarily rely on donations from the general public, governmental units and other public charities. The second category, Sec. 509(a)(2) organizations, have significant program revenue. The IRS has established tests for each type of organization. If your nonprofit doesn’t pass the 509(a)(1) test, it may qualify under Sec. 509(a)(2).

First test

The Sec. 509(a)(1) test requires that:

You have at least one third of your total support from the public, governmental agencies or other public charities, or
You have at least 10% of your total support from such sources and that the “facts and circumstances” indicate you’re a publicly supported organization.

Several facts and circumstances help determine whether your organization is publicly supported — for example, whether you have actual sources of support above the 10% threshold, answer to a representative governing body and serve the general public on a continuing basis. Such tests measure public support over a five-year period, including the current and four prior tax years.

The public support percentage excludes certain types of contributions, program revenue fees from related activities, unrelated business income, investment income and “unusual grants.” Net income from unrelated activities and gross investment returns are included in total support, though unusual grants aren’t.

Second test

Under the Sec. 509(a)(2) test, your organization must receive at least one-third of its support from contributions from the public and gross receipts from activities related to its tax-exempt purpose. No more than one-third of its support may be from investment income and unrelated business taxable income. Public support is measured over a five-year period.

This test is subject to limitations. When calculating public support, you can count only the greater of $5,000 or 1% of your total exempt-purpose-related revenue from a single individual, corporation or governmental unit in the numerator. Receipts of any type or amount from disqualified persons, such as board members, aren’t considered public support either.

Be careful about misclassifying gross receipts that are subject to the limits. IRS auditors will look for payments that should be deemed gross receipts but instead are classified as, for example, contributions, gross investment income or unrelated business taxable activity.

Mission critical

It’s critical to maintain your nonprofit’s publicly supported status. Certain organizations automatically qualify as public charities. For other nonprofits, we can help determine whether you pass one of the two tests.

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If you’re self-employed and run your business or perform certain functions from home, you may be able to claim deductions for home office expenses against your business income. There are two methods for claiming this tax break: the actual expense method and the simplified method.

How to qualify

In general, you qualify for home office deductions if part of your home is used “regularly and exclusively” as your principal place of business.

If your home isn’t your principal place of business, you may still be able to deduct home office expenses if:

You physically meet with patients, clients or customers on your premises, or
You use a storage area in your home (or a separate free-standing structure, such as a garage) exclusively and regularly for business.
Expenses you can deduct

Many eligible taxpayers deduct actual expenses when they claim home office deductions. Deductible home office expenses may include:

Direct expenses, such as the cost of painting and carpeting a room used exclusively for business,
A proportionate share of indirect expenses, including mortgage interest, rent, property taxes, utilities, repairs and insurance, and
Depreciation.

Keeping track of actual expenses can take time and requires organized recordkeeping.

The simpler method

Fortunately, there’s a simplified method: You can deduct $5 for each square foot of home office space, up to a maximum of $1,500.

The cap can make the simplified method less valuable for larger home office spaces. Even for small spaces, taxpayers may qualify for bigger deductions using the actual expense method. So, tracking your actual expenses can be worth it.

Changing methods

When claiming home office deductions, you’re not stuck with a particular method. For instance, you might choose the actual expense method on your 2022 return, use the simplified method when you file your 2023 return next year and then switch back to the actual expense method for 2024.

What if I sell my home?

If you sell — at a profit — a home on which you claimed home office deductions, there may be tax implications.

Also be aware that the amount of your home office deductions is subject to limitations based on the income attributable to your use of the office. Other rules and limitations may apply. However, any home office expenses that can’t be deducted because of these limitations can be carried over and deducted in later years.

Different rules for employees

Unfortunately, the Tax Cuts and Jobs Act suspended the business use of home office deductions from 2018 through 2025 for employees. Those who receive paychecks or Form W-2s aren’t eligible for deductions, even if they’re currently working from home because their employers closed their offices due to COVID-19.

We can help you determine if you’re eligible for home office deductions and how to proceed in your situation.

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Roth&Co’s recent ERC webinar, presented by Tax Attorney Ahron Golding, Esq., answered frequently-asked questions, provided authoritative guidance, and cleared up much of the confusion and misinformation surrounding the Employee Retention Credit (ERC). Click here to watch the recording, or read a brief summary below:

The webinar reviewed general principles and prepared businesses for a discussion with their professional advisors about how their specific organizations could benefit from the ERC. Business owners were encouraged not to make tax decisions based simply on something heard on a webinar or online, and instead to review their specific situations with a tax professional.

The history behind the ERC is simple. The government wanted to encourage businesses to keep paying their employees throughout the Covid crisis, even though those businesses were hurting from having been suspended by government order or from experiencing a significant decline in revenue. The language of the CARES Act, ERC Provision is excerpted here.

Quick Facts

• If a business is eligible for the maximum credit offered by the ERC, it can claim up to $5k per employee for 2020 and up to $21k per employee for 2021.

• There was a major law change over two years ago (Dec 2020) that allows businesses to apply for the ERC even if they received the PPP – as long as there is no double-dipping on the same funds.

• There are no new updates regarding eligibility since then, and the old rules regarding partial closure still apply.

• The ERC is a credit on a business’ payroll taxes; there is no danger of the funds running out.

• Dates to be aware of: The way to apply for an ERC is by filing a 941X (an amended payroll tax return). The deadline to claim the 2020 credit is April 15, 2024, and the 2021 credit, April 15, 2025.

• Regarding “partial suspensions,” it is possible to be eligible for the ERC even without a decline in receipts.

Eligibility is based on whether a business was shut down (fully or partially) by government order, or had a decline in gross receipts for that quarter compared to 2019. Partial closures may have included limitations on operations or mandatory modifications in a business’ processes. The closures must have been due to government order – not merely recommendation. Specific circumstances regarding closures and other ERC details are addressed in the IRS’ guidelines titled Notice 2021-20 and can be found here. You can read more about the specifics of partial closures in questions 17 and 18 on pages 34-40, excerpted here.

Take special note of the language in question 18 of the notice regarding what factors should be taken into account in determining whether a modification required by a governmental order has more than a nominal effect on business operations for ERTC purposes:

“Whether a modification required by a governmental order has more than a nominal effect on the business operations is based on the facts and circumstances. A governmental order that results in a reduction in an employer’s ability to provide goods or services in the normal course of the employer’s business of not less than 10 percent will be deemed to have more than a nominal effect on the employer’s business operations…”

The ERC statute is relatively new. There is no history or case law to tell us how the determination of ‘partial closure’ will eventually be defined by the courts. It would be wise to consult a knowledgeable tax professional who may be able to provide your business with a tax opinion based on your unique facts and circumstances, and who can support your claim in case it is challenged in audit.

The IRS has started auditing businesses who have filed for the ERC and has trained teams of auditors specifically for this purpose. You can see the training manual here. The audits focus on eligibility, substantiation of the amounts claimed, and whether an amended income tax return was filed to correct any overstated wage deduction, where required.

Penalties for erroneously claiming the ERC are costly and could mean potential 20% accuracy penalties and possible criminal liability if the government can prove an intent to defraud. Note that if your business is awarded an ERC, it may have to file an amended return for the period it received the credit in order to reduce the deduction it claimed – even if the credit has not yet been received.

Businesses that filed for the ERC and are still waiting to see their credit come through can call their congressman and ask that he reach out to the IRS for a status report on its progress. Alternately, they can contact the Taxpayer’s Advocate Services (TAS), whose representatives are tasked with assisting taxpayers experiencing tax issues.

This summary has been presented for educational purposes only and does not constitute a comprehensive study of the ERC tax laws or serve as a legal opinion or counsel.

Is It Time to Rethink Your Cash Holdings?

Video: Real Estate Right Now | Donating Appreciated Property

Fighting the Last War

Are You Documenting Employee Performance?

Passing the Public Support Test

Deducting Home Office Expenses

ERC Important Alerts | Webinar Recap