Start-Ups Category

That’s a great question, and there is no easy answer. This may clarify it a little:

As individual taxpayers Romney and Buffet pay so little in taxes because of two sources of income:

  1. They take qualified dividends from their corporations that they own or are investors in.
  2. They take Capital Gains distributions from investments they have created

For qualified dividends, between 2001 and 2012 they were taxed at 15% (now its 20%), regardless of what tax bracket you were in. Although it seems like a relatively small amount of tax, before any shareholder is able to receive and pay tax on those dividends, the corporation had to pay a tax on that as well (somewhere in the ballpark of 35-40% usually). This is where double taxation occurs. If the company is a foreign company, lets use the Netherlands as an example, they only charge 3-4% taxes on that income, then it gets distributed to Mr Buffet, and he only pays 15%. Heck of a deal.

For capital gains, the maximum rate from 2001-2012 was 15% (now its 23.8%). For investments in a “small business” (a company that has less than 50 million in assets), sale of any stock provides a tax deduction of 50% of that sale, this means that sale is now only taxed at 7.5%… wow. This is why there are so many venture capital firms.

In addition to this, they can also take advantage of investments made in countries with favorable tax laws. Both store a good chunk of their money in overseas, tax favorable bank accounts and investments. Though a slipperly slope for US tax law, many ultra rich investors have many advisors that make it legal. To explain fully would require a whole other blog post.

So as you can see, using those two methods, Buffet and Romney were able to keep their upper tax limit to around 15%, then using deductions, like donations, property taxes, etc, they dropped their tax rates to around 11-12%.

That is only for their individual rates, below is how they win with their corporations:

Huge corporations use a combination of tactics to keep tax low, but the latest and greatest is setting up shop overseas in a “tax haven” country. For example, Ireland made a deal with apple so that they would only charge 3% in taxes on ALL of their worldwide appstore sales. That’s almost a billion dollars in sales a year that they only pay 3% tax on. In comparison, the US would charge 35%.

The research and development credit allows for a very good option too. An example of the extraordinary benefits of the R&S Credit includes the fact that Boeing reported a $20 billion dollar pre-tax income, yet they received a refund from the government of $110 million. Also the new Domestic Production Activity deduction allows a very large deductions as well, most US based companies can access that.

I’ve researched this stuff a lot, mainly because I want to be in the business of offering these options to small businesses and startups, as well as people who may not be as wealthy as Mitt Romney.

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10 ,
January

What the JOBS Act Means to Startups

The JOBS act (Jumpstart Our Business Startups Act) was spearheaded by the Whitehouse in an effort to boost the economy and make it easier for startups to acquire capital for growth. It is slated to become active in January of 2013 (pending the SEC’s final guidelines).

Before the JOBS act, and according to recent studies, startups requesting capital have a high chance of being rejected by VCs. The JOBS act creates a streamlined process to advertise and trade equity for capital from anyone available to do so, including the amateur investor.

The Key aspects of the JOBS act:

  • Startups with less the $1 million in revenues qualify and are considered an “emerging growth company”
  • Startups can offer equity via a crowdfunding portal up to $1 million dollars, the requirements by the company are gradually increased with a target over$100k. According to the JOBS code, this can be repeated once every 12 months.
  • The crowdfunding portal must meet certain minimum disclosure requirements, and educate investors of the risks associated.
  • The maximum dollar amount people are able to invest will be limited to 5 percent for individuals with annual income of less than $100,000 and 10 percent for those who make over $100,000. Anyone, regardless of income level, can invest up to $2,000 according to the JOBS code.

What this could mean to Startups:

  • A large influx of capital and growth in many different industries
  • Easier access to money
  • Increased competition by limiting barriers of entry
  • The public, and potential customers of the startup get to determine the value of the startup rather than VCs and SEC approved public investors

Issues with the JOBS act

The SEC still has yet to approve their final regulations which are due in January of 2013, and may not have them approved for a  long while. For reference, the Dodd-Frank act was supposed to be completed by the SEC on 4/15/2011  and still has not been finalized.

As expected, the regulations are said to include the requirement of full disclosure of company information within the crowdfunding portal. This includes financials, articles, current equity positions, officers and directors, tax returns and descriptions of business and use of funds.

The JOBS code also requires a full review of financials if the start up is seeking between $100k-$500k.

A full audit of financials is required if the startup is seeking over $500k.

For most companies, this may be an issue because Reviews and Audits can be quite pricey. For very small companies, this may be fairly simple, as they may not even have sales or expenses yet, but even then, it requires the signature of a CPA and that still costs a fair amount. Regardless, startups will have to alter their Articles, stock term sheets, investor rights agreement, etc. All of which require a CPA or Attorney to do. I would guess that a start-up company who is seeking $1 million in capital could pay on average $3-10k just to get everything set up.

There are also some regulations for the investors themselves, mainly to protect people from investing their life savings.

Once the target capital is reached within the crowdfunding portal, the investors still have a chance to backout, so if the percentage of equity (or any other reason) was not what they were expecting, they have a chance to say no. This may lead to under-valuation or under-funding.

Any advertising that the startup does for the project must be disclosed, including who is providing the service, how much was paid whether in the past or present.

Regardless of any issues, these changes should inspire some really interesting events in the startup world. All we have to do is wait for the SEC to make their final regulations, which may take a while.

 

 

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A question that I get a lot is what I have actually saved companies for providing my three favorite tax incentives.

I will use a mid-sized company as an example. This is a company that makes between 1- 6 million in revenue each year.

Items to be Included: Typical wages and contractor expenses. If the company takes my advice for computer leasing and internal software use. Use of supplies, and segregation of administration duties.

NOTE: (If none of the above makes sense, please let me know, I will write a post on it if enough people want to know).

I can usually save a  ~3 million dollar per year (revenue) company:

  • $200,000-300,000  in R&D credits (based on wages, patents, trademarks,  supplies, etc)
  • $9,000-18,000 in Domestic Production Activities
  • $200,000 in California Enterprise Zone (other states have enterprise zones too at different rates of course: NY, VA, FL are just a few)

Total: $409,000 in taxes… not too bad. and all of that is carried forward to future years if not used in that particular year.

Contact me if you would like to learn more

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I have been getting this question more and more. Indie video game devs have one thing in mind, and that is making a great game. The last thing they want to think about is financials and taxes. But in this age of Kickstarter and Pre-order sales, they find themselves in a position where they do have to worry a lot earlier then expected.

My advice for Indie Devs:

1. Don’t sweat the entity

Don’t worry about starting an LLC or Corp until you are, or about to make money on your game(s). It is something that can be set up easily and efficiently. Also, many game devs get the wrong entity. For most devs, I highly recommend an S-corp, they are relatively flexible, have common shares (for shareholders and investors), and provide a great tax benefit. An LLC can actually act like and S-corp, so dont sweat it if you already set one up.

(Advanced: If you have, or plan to have investors, even just family members this may get a little bit complicated. Legally, and technically you need to stipulate this in your bylaws, Org Agreement or articles, if you are eventually going to have a corporation (or LLC).)

2. Keep track of your expenses

Open a separate bank account, they are usually free, it will completely separate your business related expenses to your personal ones. This way, you wont need to save every darn receipt that you get, you can simply refer to the bank statement. Remember, it is important that you track your expenses, every payment that is business related should come from your business account. This can pay off for you in the future if you ever choose to use tax incentives. It is also good practice.

3. A Video Game is your Asset

I should be telling you to protect your game with trademarks and copyrights and patents, guard dogs, etc. But that is stupid. Unfortunately you are an indie game developer, if someone wanted to steal ideas from you, your power to hire a good attorney is limited. On the other hand, have people involved sign NDAs and keep your code safe. NDA templates are available for free all over the interwebs

4. If you have “partners” get a partnership agreement (or by-laws for an S-corp, Organization agreement for an LLC)

I cant stress this one enough. Just a simple agreement saying who is entitled to what profits at what percentages. As long as it is in writing, there is no argument against it. Establishing a basis in a partnership (or S-corporation) is important as well, this is a value that is due to you if you are kicked out or the partnership (or S-corp) is sold. If you put your own personal money into the business, this increases your basis.

I have to note that most of the time you are working with close friends, this may not be required, I just always feel it is good practice then there are no questions as to who is owed what.

5. Once the cash is rolling in, get a professional *not all professionals are good

This is the kicker, hire a good CPA. Hopefully one that has experience in the gaming industry. They should know about the Research Credit, any local credits, and the Domestic Production Activity Deduction. If they dont know about those simple things, then find another. Just those simple tax incentives can save you thousands if your game ever takes off. They should also be able to provide you with strategies that translate to you personally (to better your financial situation far into the future).

Not all professionals are good, there are a lot of them who really just dont care and are only in the business for the money, I know because I run into them everyday. Try your best to spot those types. Ask a lot of questions, because if they really care and they will be truly interested in growing with your company. Find CPAs that give free consultations  meet with a few of them, it will pay off for you and your Indie Dev Team.

Best of Luck!!!

Note: This list may expand – I am constantly getting asked this question, and I think of new important issues all the time.

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How can a foreign person, not living in (or near) the united states, start and run a Kickstarter Campaign? Here are the basics of how it can be done:

There are many requirements to start a Kickstarter Campaign. Two big ones are to have a US Entity (LLC or Corp) or Social Security number, a US resident, and a US bank account. These two requirements alone would deter quite a few foreigners from trying, you would need someone you knew and trusted in the US to handle that for you. Even then, that person could face tax consequences for running that bank account for you if it is not properly planned (I will cover this in a later post). This leaves very few options to set one up.

A Difficult, but effective solution:

1. First things first, I had to start a corporation so that the foreigner(s) would be the sole shareholder(s): A Delaware Corp is a great idea, they are cheap, provide excellent legal protection, and have a small Franchise Fee for share holders (Typically $225). I can set these up for $550 with a 48 hour rush ($500 without), highly recommended for time constraints of setting up Amazon Payments. I highly recommend you DONT use any of the silly websites that charge you to set up the corporation, they typically charge a mark-up and sometimes yearly fee, most of them do not allow the rush either.

2. Second, I apply for an EIN number - This one is pretty simple and can be done once the Corporation is in place. If you already have a SS# or ITIN you can get an EIN here

3. Next step is to Get a US resident to be part of your team as a “Creator” or “Developer”. This is the tough part. If you are trying to run a Kickstarter campaign, you need to have one. Amazon Payments needs to confirm that your company name listed on the bank account is associated with your US address. Kickstarter also requires this in their own version of verification. The US helper must be available to use their name for Kickstarter. They must be considered a key “creator” in your team. You, as the foreigner can still hold signer privileges on the bank account, but it may be difficult – see below 4. After you get a helper, you need a US based Checking Account To set up a bank account without my help, you need:

  • A tax ID number registered with the IRS. You can get one by filling out and mailing in this form: http://www.irs.gov/pub/irs-pdf/fw7.pdf You will need to provide a Notarized copy of your passport.
  • Once you get that, find a bank that is located in the US, that has a branch in your country. You must be able to go there in person to set up your signature account. Use your ITIN and EIN number to open the account. Your helper in the US may need to provide documentation supporting this information to a local location. You MUST have a US address on the bank statement, but it can be managed online by you as a foreign person.
  • Some banks such as wells fargo allow a notarized copy of the application and ID to be sent courier as long as your US helper is involved and in person at the bank when the account is set up.
  • I have also heard that some foreign banks, who also have a presence in the US will help you set up a US account without the need for a US helper. I am not sure which banks offer this though.

Or

  • You can have a friend or family member that you trust who lives in the USA (with a SSN) open up a checking account and be an authorized signer on the account for your business.

5. After this process, you may ask: Can I get taxed in the USA for Kickstarter Funds? The easiest answer is a small portion of your funds will need to be taxed in the US order to legally run the Kickstarter Campaign. Your foreign company must eventually “pay” the US company for providing the service to run the Kickstarter Campaign for them. I would say a good safe number would be 1-3% of the Kickstarter proceeds for services. They must reflect the market value of the work that it took to complete the whole process. That 1-3% will be taxed in the US at the corporate income tax rate, then whatever is left over can be issued as a liquidating dividend to your foreign company, and taxed in your country appropriately. The amount that your company eventually received from the Kickstarter Campaign should be taxed in your country depending upon your countries tax laws.

Its a difficult process, and with Kickstarter’s tight guidelines, its a risk to do all of that work and find out that your projects does not meet those guidelines. Indiegogo, which offer the exact same service allows pretty much anyone to run a campaign.

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And if your CPA says otherwise, fire them. I have seen two articles already where a Kickstarter video game project says they had to pay taxes on their left over money in their first year, this makes me sad, because you can easily avoid that.

NOTE: There has been some confusion on this article where people seem to think I am suggesting you avoid or evade taxes. That is NOT the case at all. These methods used are 100% legal ways to reduce or postpone taxes paid. I want to be very clear: ALL OF THESE METHODS are 100% legal and are in no way avoiding or evading taxes.

In order to eliminate taxes all together there is a simple accounting rule and election of income that you can use, if that fail (which it wont 99% of the time), then there are a few more complex methods that can not only reduce the tax, but can set yourself up to have a tax benefit to carry over to future years, and should probably be used regardless of your situation.

I will start with the first and most simple method:

Accrual Accounting.

Accrual accounting is an election that is made on a tax return that allows you to claim income when it is earned, rather than when it is received. This means that every video game company (or many others) out there who get Kickstarter funds would not have to pay taxes on those advanced payments until the game is actually made and distributed to those individuals who pre-purchased it.

Going further, let’s just assume that you have given away items such as T-shirts, artwork, and prizes that you distribute to your backers the first year. You would have to include in income up to cost (or fair market value) of those items on your tax return, because technically you did provide a portion of the service and some of that income was technically “earned”. Therefore, you will be responsible for some of the income earned. What’s important to note, is that you will easily be able to offset that income “earned” with the first year’s expenses or the cost of those items (t-shirts, art, etc.).

Simply electing the accrual accounting system is not enough in itself (which anyone can do including individuals, LLCs, Corps), the IRS still requires a special election to classify the income. If that election is not made, the income falls under the rules set in publication 538 (passage in quotes below) and you do not get any benefit from the accrual election, further, you must use the instructions in pub 538 to properly elect the classification on your tax return in order to make that income an “advanced payment”:

“You report an amount in your gross income on the earliest of the following dates.

  • *When you receive payment.
  • When the income amount is due to you.
  • When you earn the income.
  • When title has passed.”

It is important to properly elect to classify this income. I highly recommend a professional handle this for you, as it is easy for someone untrained in taxes to make a mistake with this election. The key to this is to talk to many professionals and ask them if they understand these concepts, as I have seen over and over, most professional do not.

Other Tax Savings Tactics:

Research and Development tax credit

This one I write about all the time, and if you are a video game dev and your accountant has not offered this to you, fire them right now, the benefits are tremendous and could potentially eliminate taxes on income generated from both Kickstarter and sales to the general public. The credit requires some heavy analysis. My firm and many others will not charge until the benefit is used, so it makes complete sense for you to utilize it.

Domestic Production Activity Deduction

This deduction was created in 2004 and was meant to be geared toward the manufacturing industry, then the attorneys over at Electronic Arts successfully lobbied congress and extended it to software and video games. This deduction is 9% of net income, which is an incredible tax break that nearly nobody knows about. For someone that has a net income of $100,000 can easily write off $9,000 as an additional deduction, potentially getting up to $3,000 back in taxes. There are many other requirements to elect this deductions, so again, I advise you to consult a professional with experience utilizing this deduction, not all of them have this skill.

Updated 4/19/2013 with additional information, fleshing out the concepts

Again, this article is only meant as informational, many individuals and companies have unique situations, I recommend you consult a professional before applying any of the above information.

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Aside from the intrinsic value of having local contractors that are easily accessible and speak the same language, there is a value of keeping your contractors that you hire local and in the US.

There are tax incentives in place for keeping production activity in the US, and in some cases may offset the up front savings of looking for contract work overseas.

The R&D tax credit and the domestic production deduction can offset a companies tax liabilty by enough to make it worth it. An example of a small video game developer below:

Over three years of development the video game developer accrues:

  • $200,000 domestic wages
  • $60,000 contractor 1099 expenses (foreign and/or domestic)
  • $10,000 in computer leasing expense

The company releases its video game and earns $500,000

Typically the tax bill would be $175,000 for someone who has no accounting system in place, but lets assume they understand a basic accounting and deduct the expenses based on accrual system. this leaves them with a tax bill of around $70,000.

Assuming the contractors hired were outside the US, and Utilizing the R&D credit and domestic production deduction on all other activities, they are left with a $40,000 tax bill

If the contract work was completed by someone IN the US, the tax bill would be $8,000 less at $32,000.

In this situation, if the company chose to pay contractors within the US, they would have saved $8,000. The bottom line is companies should take this into consideration before thinking about how much they save by hiring overseas.

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This post is more informative if someone reading this actually looking into doing the Research Credit.

We charge on a contingency basis, in fact, a great many firms do this. If you get a refund from the work that we do, then we get paid. Simple as that.

The reason you will rarely find anyone charging an hourly rate for the Research Credit is that the scope of the credit is so considerable, that it could potentially outweigh the actual credits earned. There are certainly cases where we lose money by not properly qualifying a client before going into it.

Also, the job costing for creating hours billed for R&D credit work can be an absolute nightmare, not many companies are willing to do this, it also creates a burden on the company receiving the credit because they need to review the hours before paying.

Some of you might be thinking, what happens if you inflate the total credit numbers, just to get a few more bucks? There is a sort of insurance, or guarantee attached to the service. If the IRS audits you, then we pay back the difference in fees. In this case it makes sense to create a rock solid defense so this never happens.

Many people ask me when I bring up research credits, why their CPA isnt currently doing it for them if, according to me, they would qualify for such a fantastic credit.

There are many reasons that your typical tax filing CPA wouldnt work on the R&D Credit for you. One of the biggest is that they could potentially lose their license (explained below). Below is a list of some of the reasons your tax CPA is not even offering this type of service:

1. It takes a extraordinary amount of time

Your CPA is already spending a lot of time preparing your tax returns, to add an additional 40+ hours to determine if you have even the slightest chance to achieve the Research Tax incentive is not something that they would do. The only time I have seen a CPA firm offer both Tax Prep and Research incentives, is when it is a top 4 firm, that has seperate departments. This of course shows in the hefty price tag.

2. Its a pain in the ***

The R&D Credit is a very difficulty credit, with literally hundreds of lines of tax code to support it. It is highly specialized, and only certain tax firms that have done the work to learn the ins and outs of the credit can offer the service.

3. Your CPA can potentially lose his license

This is the big one. The Research credit is not an easy credit to perform, it takes hours upon hours of substantiation, your typical tax accountant will have to charge for these services. No one in their right mind will pay an hourly charge for something like this, because if they did there would be a potential situation for a huge bill and nearly zero credits used (in the case that the CPA could not find enough credits to offset the fees). There is enough uncertainty that the credit might not heed results to cause this.

So CPA firms typically charge a contingency, if they can find enough credits to use, they will charge you a percentage of what you use. It makes sense to use this business model, you pay for what you use, and it doesn’t come out of your pocket until money goes into it. I have yet to meet a CPA that charges hourly for tax incentive work.

In this case of charging a contingency, if your tax accountant is preparing your returns as well, they face a very large liability of losing their license if they make any mistake on your return. It is very easy for a CPA to deflate an expense in order to inflate the amount of the tax credit used. This in turn will inflate their contingency collected.

This is illegal under the AICPA. An accountant preparing taxes is not allowed to collect a contingency for it. Period.

Simple enough right? Well maybe not, but there is the long explanation of why your Tax CPA will not, and has not done your R&D credit project. This is why many CPAs work with other firms to provide these services.

I work with 10 other firms and provide their clients with this service. It benefits everyone.

Many start-ups are in one mode only and thats survival mode. Doing what they do best, selling, programming, and creating.

What they fail to do is plan for the future by getting good professional help with their taxes. Just getting a CPA is not what I am talking about.

Finding a CPA firm that can provide all the resources you need is difficult. What I am talking about is providing tax advice throughout the year, doing or auditing books to make sure your financials are sound, and the most important: making sure you qualify for and implement tax incentives.

This is a huge deal when it comes to start-ups, because many do not take advantage of the credits or wait too long and cant utilize the credits from earlier years. Just because you pay little or no taxes now, does not mean you cant use them or benefit from them in the future. A little planning can save you thousands off income you earn in future years.

What I am specifically referring to is the Research and Development Tax Credit (or R&D credit). This credit has been put in place for anyone who spends money to create or improve a product or service. This allows them to lower their taxes and offset some of the uncertaintanty of doing those activities. The credit has been around for years, and is said to provide an incentive for american companies to spend money on creating something, giving us a huge advantage in the world marketplace.

I’ve found in my experience, very few small start-ups utilize the credit, although based on the credit itself, it’s those small businesses that benefit the most.

For a typical startup, the credit is usually around 10-20% of research expenses for the first 5 years, which can be astronomical. You can carry forward the credit up to 20 years, which means if you dont use it right away, you can save it for later. The look-back is 3 years max, so the credit can be utilized in past years if not taken advantage of immediately upon start-up.

Here is a simple calculation showing the potential of the credit itself, these are the assumptions:

  • You hire one employee to work on coding software, their salary is $70,000
  • You also hire one contract worker (within the US) to debug at $38,500
  • You buy computer equipment and a server for $3,000
  • You also hire an assistant to help out your programmer and you, the assistant actually helps the programmer 50% of the time, their salary for the year was $4000.

Add those up:

  • $70,000
  • +25,000 (65% of $38,500)
  • +3,000
  • +2,000 (50% of $4,000)
  • =$100,000 for 1 year

Assume your company’s revenue was less than $500,000 that year.

The credit would be:

  • =$10,000 – Off federal and most* state tax liabilities
Pretty incredible right? Even if you didnt use that credit this year, you could carry it forward 20 years, or even carry it back one year.
This is something that absolutely every start-up should be utilizing from the beginning. Unfortunately, many that I find do not, and they rely on a CPA that just doesnt know what the credit is, and how versitile it is for the average start-up.
My recommendation: Keep your current CPA, but seek out a firm that can at least do an evaluation for you to see if you will benefit.
Shameless self-promotion: I can always do a free consultation (in person or skype), and easily let you know if you qualify. If we decide to move forward, I don’t charge anything until the credits are actually used. This means no money comes out of your pocket until the IRS and/or state puts money into it. This is a strict policy of mine, and it seems to work very well.
*Most states cooperate with the IRS’s guidelines regarding the R&D Credit and offer different versions of their own. Obviously states that don’t have income tax wont be part of it.