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Flashcards in CPA REG Deck (398):
1

What is Agency Law?

Agency Law deals with someone's ability to bind you to a contract with a third party

2

What is required for Agency to exist?

Both parties must consent to the relationship and intend for an Agency relationship to exist

Agent owes Principal fiduciary duty

Principal doesn't owe Agent fiduciary duty

A contract is NOT required and an Agency agreement is not based on Contract Law; Exception - If duties cannot be performed within a year; a signed writing is required

3

What is Actual Authority in an agency?

Actual Authority is what is expressly granted or is implied by the duties you expect the Agent to perform and is necessary to carry them out

4

What is Implied Authority in an agency?

When authority is expressly granted; it is implied that the agent has the authority to carry out the duties

Does not include authority to sell or alter a business

5

What is Apparent (Ostensible) Authority in an agency?

Apparent Authority is based on the third party's perspective - they believe that the Agent has the
authority to enter into a contract based on:

*Prior dealings with agent
*Agent's title leads the third party to believe they can enter into a contract
*The Principal hires the Agent to carry out duties that normally carry with them the rights to enter into contracts

6

How is an Agency terminated?

*Both Agent and Principal agree to terminate
*Principal fires Agent
*Agent fires Principal
*Agent breaches their contract by doing something like violating their obligation to act as a fiduciary to Principal

7

How do you terminate Apparent Authority?

*Let the public know
*Let the people or entities that the Agent previously interacted with know
*In cases of death; or Principal is otherwise not competent to contract; ALL authority is revoked

8

What is an Agency Coupled with an Interest?

Agent acquires an ownership interest in the Agency

Can only be terminated early (before the interest expiration date) by the Agent

Unless the Agency has a specific time limit spelled out in a contract; the Agent's authority is irrevocable
by the Principal

9

When is an employee an Agent; and when does this make the employer liable?

Employees are agents while acting within the scope of their duties.

For employees who injure third parties while acting within the scope of their duties; both Employee and Employer are liable

10

When are Agents liable for torts (civil wrongs) they commit?

Agents are liable for torts (civil wrongs) committed whether they had authority or not

11

Are Agents who act outside of their authority liable?

Agents who act outside of their authority will be liable for the act

Exception - Principal ratifies the contract which relieves Agent of liability

In order to ratify; Principal must know all of the facts and must ratify before third party cancels agreement

If Principal keeps the benefits of the contract; ratification is implied

Contract must be 100% ratified or there is no contract

12

What is an Agent's liability when acting for an undisclosed principle?

*Agent liable to third party even if acting within authority
*Third party can sue both Principal and Agent if Principal becomes disclosed
*Agent can then sue Principal

13

What are the requirements for a Power of Attorney (POA)?

Must be in writing

Must be signed by person granting the POA

Ends upon death of Principal

General POA - Agent authorized to handle all affairs

Special POA - Agent authorized to handle only specific affairs

14

What are the basic actions that occur in a bankruptcy?

Bankruptcy gives creditors protection from their creditors and stops them from either permanently (Chapter 7) or temporarily (Chapter 11 or 13) collecting a debt. The filing halts collection activity; grants automatic stay (with certain exceptions), and stops creditors from suing debtor.

15

For what debts does bankruptcy NOT stop collections?

Student Loans
Income taxes from previous 3 years
Alimony & Child Support
Debts/judgements resulting from drunk driving
Pension obligations
Debts relating to SOX violations
Debts arising from illegal activities
Debts not listed in the bankruptcy filing

16

How does bankruptcy of a corporation affect the owner's ability to file bankruptcy?

It doesn't; because the corporation is a separate legal entity.

Under bankruptcy; corporations are dissolved

Under bankruptcy; individuals are discharged

17

What key action will cause a bankruptcy discharge to be denied?

If a debtor fails to keep good records or falsifies documents; a discharge will be denied

18

What are the basic characteristics of a Chapter 7 bankruptcy (liquidation)?

Discharges all non-exempt debt

Can only be filed every 8 years from previous Chapter 7 filing

Voluntary or involuntary filing

Certain businesses are disallowed from Chapter 7 bankruptcies - Railroads; Banks; Insurance companies; Savings & loans (think: 7th inning RBIs)

19

What are the requirements for a voluntary bankruptcy filing under Chapter 7?

Must pass means test

Your income must be below the median income for your state (Note - median; i.e. middle; not mean; i.e. average)

Credit card companies made it harder for people to declare Chapter 7 when they lobbied Congress in 2005

20

What are the requirements for an involuntary bankruptcy filing under Chapter 7?

In some cases; your creditors can force you into Chapter 7 or Chapter 11 BK

Creditors must be able to prove that they are not being paid on time (i.e. debtor is insolvent) or that within the past 120 days the debtor assigned a custodian of the secured property

If 12+ unsecured creditors - at least 3 must file; claims must be in excess of $15325

If less than 12 unsecured creditors - only 1 must file; claim(s) must be in excess of $15325

Upon filing; a judge will declare an order for relief unless the debtor protests

21

What entities are disallowed from involuntary Chapter 7 bankruptcy filings?

Charities

Farms

22

How can a debtor reclaim possession of their property from the interim bankruptcy under Chapter 7?

If the debtor pays the court-assigned bond to keep a property in an involuntary BK; they can
reclaim possession of their property from the interim BK trustee

23

What are the basic characteristics of a Chapter 11 bankruptcy (business repayment) filing?

Allows a business a reprieve from creditors
Creates a payment plan for the debt
Business remains in operation
At least 2/3 of each debt class of creditors must consent to reorganization
Ch. 11 Involuntary petitions are allowed

24

What are the basic characteristics of a Chapter 13 bankruptcy (personal repayment) filing?

Similar to Chapter 11; but for individuals

Gives individuals a reprieve from creditors

Creates a payment plan for the debt

Ch. 13 Involuntary petitions are not allowed

25

What are the duties and abilities of a bankruptcy trustee?

Represents the bankruptcy estate

Can sue or be sued

Oversees bankruptcy and watches for preferential creditor payments

Oversees priority transfer of assets to creditors

26

How and when is a bankruptcy trustee appointed?

Optional - Creditors decide

Can be elected by creditors or can be appointed by the court

27

What actions can a bankruptcy trustee take with respect to preferential creditor payments in a bankruptcy?

Trustee can void payments on antecedent (past) debts that occur within 90 days of a BK filing

A Trustee cannot void a payment made to a creditor that is an even swap (contemporaneous exchange) and for new value

A voidable preference must be on an old debt where the debtor is basically picking and choosing which creditors they send money to (AKA a voidable preference)

28

When can preferential transfers be voided by a bankruptcy (BK) trustee?

Made within One Year of BK to insider - Corporate officers/directors; Partners; Relatives

Made within 3 Months of BK non-insider

Creditor receives larger payment than BK liquidation would have granted

29

What is the treatment of a secured creditor in a bankruptcy?

Superior to claims of other types of creditors

Can take either collateral or cash proceeds from the sale of an asset

If collateral doesn't satisfy amount owed; Secured Creditors become a general creditor for the difference.

30

What is the order of priority given to unsecured creditors in a bankruptcy?

1. Court Costs and Fees
2. Child Support & Alimony
3. Expenses from ordinary course of business during bankruptcy proceedings
4. Wages owed to employees
5. Retirement contributions within last 6 months
6. Consumer deposits for undelivered goods
7. Taxes
8. Other general unsecured claims

31

What are key aspects of a bankruptcy involving a landlord or leases under Chapter 7?

The bankruptcy trustee can act in the best interest of the creditors and assign the leases under contract to the creditors

The trustee has 60 days to assume leases on equipment after bankruptcy is granted or the leases will be rejected

32

What is the bankruptcy estate?

The pool of assets available to creditors until liquidation

33

What assets are exempt from creditors in a bankruptcy estate?

Social security

Disability payments

Unemployment; Child Support; Alimony; Wages; Pensions; Annuities to the extent that they provide reasonable support for debtor and dependents

34

How long after a Chapter 7 bankruptcy filing can creditors claim inheritance or insurance payments for repayment?

Inheritance/Insurance payments received within 180 days of filing for a Chapter 7 bankruptcy become part of the BK Estate

35

What is a garnishment with respect to a bankruptcy?

Court allows a creditor to garnish or take a portion of the debtor's paycheck

36

What is a mechanics lien?

Lien on real property to secure payment for a repair/improvement done to the house

A contractor builds an addition to your house and you won't pay. They can't repo your house; so they get a Mechanics Lien that sticks until you sell your house and they get paid

37

What is an artisan's lien?

Applies to personal property like a car

If the dealership does $500 in repairs to your car; you don't get the car back until you pay

38

What is a surety (co-signing)?

A third party agrees to be liable for a loan

Example: A parent co-signs on their child's car loan

39

How is a surety liable in a transaction?

A surety is primarily liable

Surety can be released from liability if the creditor behaves in a way that increases the risk that they
initially agreed to

Surety can be released from liability if the debtor changes the loan agreement in a way that materially
increases the surety's risk

40

What is a cosurety; and how are they liable in a transaction?

Two sureties are guaranteeing the same debt

Proportionately liable - If one cosurety is released from their obligation; then the remaining cosureties
have their proportionate share reduced by the released party's percentage

If one surety pays more than their proportionate share of the risk; then the other sureties must compensate them for the difference; which is called Right of Contribution

41

What is a guarantor?

Similar to surety; but a guarantor is secondarily liable

42

What are the basic rights of a debtor under the Fair Debt Collection Practices Act?

Basically - your creditors have the right to collect from you; but not abuse you or embarrass you

The can't contact you once you're represented by an attorney

They can call other people to find out where you are; but they cannot identify themselves as collectors

They must stop calling you at work if you send them a certified letter that says my employer doesn't allow me to take calls at work.

They must call you only at reasonable hours of the day - according to your time zone; not theirs

43

What are the key elements of a valid Partnership?

Must have two or more partners. Must intend to engage in business for profit. Life of partnership is of limited duration in most cases. Agency/fiduciary relationship is created. Partnership interest is always considered personal property.

44

Can corporations and other partnerships become partners in a partnership?

Yes; corporations and other partnerships can become partners of a partnership

45

Name the Basics of Partnership Formation - Form of agreement and intent

Agreement can be very informal - either ORAL; IMPLIED or WRITTEN

Intent is to make a profit

46

When must a partnership agreement be in writing?

Must be WRITTEN if partnership activity falls within Statute of Frauds:

A. Can't be completed in 1 year

B. Even if partners reside in different states; not necessary unless within Statute of Frauds

C. Neither dollar amount of transactions nor purchasing of real estate has bearing on whether partnership agreement must be in writing

47

How are profits shared in a partnership?

Profit sharing is equal by default

A. Unless partnership agreement says otherwise

B. Unless specified; sharing of losses follows same pattern as sharing of profits

48

What is the Liability of General Partners in a partnership?

Joint Liability - Partners are collectively liable for debts/torts

Several Liability - Partners are individually liable for debts/torts

49

Which assets may creditors of a partnership go after; and in which order?

Creditors must go after partnership assets first before suing partners individually

50

What are the rights of a General Partner in a partnership?

General Partners have joint control over the management of the partnership and its affairs

Unanimous vote needed to change the structure of the partnership

Each partner has full right to inspect partnership accounting and business

Partner has the authority to assign their interest to another partner

51

What does and does NOT happen when a General Partner assigns their partnership interest to someone else?

1. Other party gets that partner's share of the profits and/or capital contribution.

2. Does NOT give assignee authority to vote on partnership business

3. Assignee does NOT have right to inspect partnership books

4. Assignor still maintains liability

5. Partner does NOT have the right to assign their interest in partnership property or allow partner's creditors to attach a lien.

52

What is the actual authority of a partner in a partnership?

Has authority to bind the partners to a contract.

53

What is the APPARENT authority of a partner in a partnership?

A third party reasonably believes partner has authority to bind partnership to contract

Cannot use apparent authority to add a new partner

Cannot use apparent authority to sell or bind partnership assets

54

With respect to liability on subsequent debts; what happens when a partner withdraws from a partnership?

Partner not liable assuming notice given.

Notice must be given to nullify apparent authority

People who had knowledge of their role must be personally notified

Public must be notified

55

With respect to PRECEDING debts; what is the liability of a partner in a partnership?

Old partners: Jointly and severally liable unless creditors grant novation

New partners: Only capital account at risk on preceding debts. For subsequent debts; they are joint and severally liable.

56

What happens upon the death of a partner in a partnership?

Partner's estate gets share of partnership profits and capital account

Estate does NOT get any partnership assets

Remainder of partners own partnership assets

Heirs of decedent are not added as partners unless remaining partners unanimously agree

57

What happens during the winding up of a partnership and in what order?

1. Creditors get paid; Partners can also be creditors

2. Distributions in arrears get paid

3. Partners get return of Capital accounts

4. Any remaining distributions

Note: NO documents need to be filed with state to dissolve general partnership.

58

What are the requirements to form a Limited Partnership?

Governed by state L.P. laws

Must file L.P. certificate with Sec. of State

Only General Partners must be listed

Future additions or subtractions of G.P. require certificate to be updated with state

59

How are profits and losses split in a Limited Partnership?

Unlike G.P.; L.P. profits/losses are split according to capital contributions by default

60

True or False: In a Limited Partnership; a General Partner can also be a Limited Partner at
the same time.

True.

A Limited Partner; however; cannot also be a General Partner and maintain limited liability.

61

Do limited partners have a fiduciary responsibility to a Limited Partnership?

No. Limited Partners are do not have a fiduciary responsibility to Limited Partnership

62

What authority does a limited partner have under a Limited Partnership?

1. Right to inspect records of the business.

2. Can still vote on partnership business without losing limited liability

3. Can consult and advise partnership without losing limited liability (assuming they don't actually make the decisions)

63

What limitations does a limited partner have in a Limited Partnership?

1. They have no authority as an agent to bind the partnership

2. They can't participate in management decisions and maintain limited liability.

64

What is the liability of a limited partner in a Limited Partnership?

Limited partners are liable to the extent of their capital contributions only

Exception - A Limited Partner (who cannot participate in management decisions) becomes involved with management decisions

Becomes liable to third parties *IF* they knew of their involvement

65

When does the dissolution of a Limited Partnership occur?

Automatically happens

1. Once final General Partner leaves
2. Time specified in certificate lapses
3. Event specified in certificate happens
4. Unanimous consent by partners
5. Illegal activity

66

What is required to form a Limited Liability Partnership (LLP)?

1. Majority vote required to form LLP
2. Articles of LLP filed with Secretary of State
3. Governed by laws of that State
4.Limited Liability Partnership must be in name
5. No General Partners - each LLP partner has limited liability - Exception: Negligence of partner or those under partner's supervision

67

What are the key aspects of a Limited Liability Company (LLC)?

Members can participate in management and retain limited liability

Members don't own any interest in LLC property

Members can assign interest; but not transfer it

Members divide profits equally unless otherwise stated

68

What are the key aspects of Joint Ventures (JV)?

Similar to a General Partnership; except generally; a JV is for a single business activity
Example: two companies promote a concert

Ability to bind other JV partners is limited

JV partners still have a fiduciary responsibility to JV

No state filings or paperwork necessary

69

What are the key aspects of a corporation?

Shareholders have limited liability to the extent of their capital contribution

C Corporations have a perpetual life and continue even after shareholder death

Corporations are a separate legal entity from their owners and can own property; sue; be sued

Corporations must file Articles of Incorporation in state of governance

70

What are some of the advantages of a corporation?

Ability to raise capital

Limited liability - unless actions occur that pierce the veil

Ease of ownership transfer

71

What actions can pierce the veil of a corporation?

Commingling of assets

Fraud

Under-capitalization

72

How is a corporation governed?

Board adopts Corporate Bylaws to govern company business

73

What items are required in a corporations Articles of Incorporation?

Name; purpose; powers of Corporation

Name of registered agent & incorporators

Stock share classes authorized; par values

Name of corporate officers NOT required

74

What is the biggest disadvantage of a corporation?

Double taxation

75

How are corporations formed by promoters?

Promoter issues prospectus; arranges capital; and is a fiduciary of the corporation.

A promoter may profit from work performed if the corporation is aware of it.

76

When is a corporation liable for pre-incorporation actions taken by a Promoter?

Promoter personally liable unless third party agrees to a novation and releases Promoter
from liability; UNLESS the corporation adopts.

77

In how many states must a corporation incorporate?

Corporations are only incorporated in one state

Become adomestic corp. in that state

Become aforeign corp. in any other state they do business in

78

Describe Common Stock dividends and their rights/liabilities in relation to shareholders/corporations.

Dividends are NOT a shareholder right

Once declared; dividends become a liability to corporation

79

What are key aspects related to the holding of Preferred Stock?

No voting rights

Get first rights to dividends and liquidation

Cumulative Preferred Stock dividends that go undeclared accumulate and Corporation must pay it before issuing dividends to Common Stockholders

Participating Preferred Stock gives shareholder right to dividends in addition to what they get as Preferred Stockholders

80

What aspects are related to all classes of corporate stock?

Valid consideration must be given for shares

Cash; property; or services performed

No promises to pay or perform services

81

What are the key aspects of Treasury Stock?

No Gain/Loss recognized on Treasury stock

Have no voting rights

Can be re-purchased below par

Cannot produce dividends

82

What is a stock subscription and what is required for it to be valid?

An offer to buy shares of stock

Must be accepted by corporation to be valid

Offer cannot be revoked for 6 months

Subscriber becomes liable once accepted

83

When is a corporation liable for torts by employees?

If committed within the normal scope of the employee's job

Even if they were disobeying orders

Per respondeat superior

84

What are the key aspects of a corporate officer?

Appointed by the Board of Directors

Act as Agents

Owe a fiduciary duty to the corporation

Can have legal fees paid by corporation for defense in lawsuit brought on them from carrying out their normal duties (exception- suit brought against officers by shareholders)

85

What are the key aspects of a corporation's board of directors (BOD)?

Elected by shareholders

Owe fiduciary duty to corporation

Must act in good faith to avoid being liable for bad judgment

Good faith is NOT a defense for negligence

86

What is Ultra Vires?

Corporation management acting beyond what the Articles of Incorporation allow

Shareholders can sue for Ultra Vires

87

When is inspecting Board minutes the right of a shareholder?

Shareholders can inspect Board minutes and records only if request is in good faith

88

Who must approve mergers and consolidations?

Boards must approve

Shareholders must approve by Majority

Disapproving shareholders can get an appraisal and get their stock back at current market price

Merger does NOT need creditor approval

89

What characterizes a Professional Corporation?

Shares owned only by licensed professionals (CPAs; attorneys; etc.)

Limited Liability for debts

Personal Liability for negligence

90

Who can and cannot own an S-Corporation?

CAN be owned by Estates; Trusts; and Individuals

CANNOT be owned by a C-Corporation

91

What is the primary advantage of an S-Corporation?

Avoidance of Double Taxation

92

What are the disadvantages of an S-Corporation?

No more than 100 shareholders allowed

One class of stock allowed

Shareholders must be US Citizens/Residents

93

What is a promissory note?

A promise to pay a specific amount. There are two parties involved - maker and a payee. It can reference other transactions without harming the instruments negotiability. Example: Bank Certificate of Deposit (CD)

94

What is a draft?

A commercial paper involving three parties- a drawer; a payee and a drawee

A drawer orders a sum to be paid to a payee by the drawee

May be payable on demand or in the future

95

What is a check?

A check is a type of draft that is payable ON DEMAND; payable to order of drawer or bearer

Drawer - person writing the check

Payee - person being paid

Drawee - the bank

96

What is the difference between a post-dated check and a negotiable time draft?

A check is payable on demand; even if post-dated.

A negotiable time draft is not payable until the date designated for payment.

97

What is a trade acceptance?

Seller extends credit to Buyer

Buyer agrees to pay Seller - Buyer has primary liability

Seller is both Drawer and Payee - Seller has Secondary Liability

98

What is the purpose of the negotiation of commercial paper?

Transfers ownership to another party

99

What is required to maintain the negotiability of a commercial paper?

Must be in writing

Signed by drawer/maker

Be without conditions for payment (other than limitations on payment sources)

Amount of money must be stated

Payable to order or bearer

100

What characteristics will cancel the negotiability of a commercial paper?

An additional promise is stated in addition to the promise to pay (like the option to purchase Real Estate)

The promise to pay occurs after some action by another party or an event; it cancels negotiability

Cannot allow for an alternative such as payment or some other action by the maker

Note: a stated amount of payment plus a stated % of interest is OK

101

What is required to negotiate Order Paper?

Must have delivery and endorsement

If paper is exchanged for value; transferor must give an UNQUALIFIED endorsement

102

What are the major types of endorsements on commercial paper?

Blank - Doesnt name a new payee; transforms into a bearer paper

Special - Names a new payee; transforms into an order paper

Restrictive - Adds restrictions; doesnt stop further negotiation

Qualified - Payment not guaranteed; without recourse added to endorsement

103

If endorsed; within what amount of time must a check be presented for payment in order to hold the ENDORSER liable?

Within 7 days

104

On a commercial paper; which value will supersede - words or numerical dollar amount?

Written amount supersedes the numerical dollar amount.

For example; if the words say One hundred dollars and the numerical amount states $1000.00; the value of the paper will be $100.00.

105

Define primary liability with respect to a contract.

First in line to pay on the note/draft

Maker of a Promissory Note has primary liability and must pay according to terms of the note

With a Check; no party has Primary Liability

Exception: Drawee (your bank) is primarily liable to pay if they certify - i.e. promise to
pay

106

Define secondary liability with respect to contract liability

Drawers are Secondarily Liable if Drawee fails to pay a Draft

Endorsers (the payee) are secondarily liable

Holder in due course can hold Endorser liable

Exception: Endorsed Without Recourse

107

Define contract liability.

Guarantees payment of a liability

108

When does warranty liability occur?

Occurs when you negotiate commercial paper

By signing; you warrant to all future parties

By not signing; you warrant to current party only

109

What five warranties occur with every commercial paper transfer?

Warranty of Title

No defense will stand against it

No material alteration

No knowledge of bankruptcy proceedings

All signatures are legitimate

110

What are the requirements for a holder to be a holder in due course?

Holding a negotiable instrument

Taking instrument in Good Faith - Even if you buy a stolen note and you dont know that its stolen; youre still an HDC

Having no knowledge of defenses again instrument; i.e. problems with the instrument

Giving a *present value* for the instrument (a future value doesnt count)

111

What are the personal defenses against a holder in due course (HDC) which will LOSE?

An HDC takes an instrument free of Personal Defenses (LOSE vs. HDC)

Lack of consideration/value given
Breach of contract/warranty
Duplicate payments
Fraud (in the inducement only)
Voidable contracts

112

What are the REAL defenses against a holder in due course (HDC); which will WIN?

A holder in due course takes an instrument subject to Real Defenses (WIN vs. HDC)

Material alterations to the instrument
Forgery
Bankruptcy
Maker not competent to Contract
Fraud in the execution

113

What must a contract contain?

Offer, Acceptance, Consideration, Proper form (oral or written), Legal subject matter, 2 Competent parties

114

What forms may acceptance of a contract take?

Can be written or oral

Must be in the form/method required by offeror

Must be mirror image - i.e. no changes in terms

115

Who can accept an offer?

Must be accepted by intended party (offeree)

Acceptance can only be made by a party who knows an offer has been made and has all of the facts - AKA a meeting of the minds

They must intend to accept

116

What happens if an offeree accepts a contract but puts added stipulations?

It is not acceptance; but instead becomes a counter-offer and the original offeror is now the offeree

117

What will void an offer?

If offeror dies or becomes insane before acceptance; offer is void.

Contract is binding if acceptance occurs before death/insanity.

118

What actions or circumstances will revoke a contract?

Offeror revokes and offeree receives revocation

Offeree finds out prior to acceptance that offeror has sold the item

In the case of an Option; offeror cannot revoke until the time of the option has elapsed

Initial rejection by offeree doesn't void the option.

119

What is an Option?

Some amount of consideration (like money) is put forth by offeror to keep the offer open for a
stated period of time

120

What is a Requirements Contract? How are they limited?

These are contracts where someone becomes the exclusive provider of something in exchange for
consideration

Companies can't get locked in to one and then have market conditions force them to sell something at
what has become an unreasonable price

121

What is promissory estoppel?

Promises to donate are legally enforceable

Basically; you can't tell a charity; Hey; if you buy this
$100;000 piece of land; I'll pay for the building that
will go on it; and then renege on your promise

122

What can make a contract VOID?

Fraud in the execution

Formed under extreme duress - extreme

Illegal

123

What can make a contract VOIDABLE?

Fraud in the inducement

Party not competent to contract

Formed under SIMPLE duress

Undue influence

124

What is the result of a clerical error in a contract?

The contract is unenforceable.

Example: Person signs a contract to pay $500.00 to have
their lawn re-seeded but due to clerical error; it actually reads $5000.00

125

Contracts under the Statute of Frauds must be in what form to be valid?

They must be in writing.

126

What makes a contract subject to the Statute of Frauds?

o Cannot be completed within one year
o Involves the purchase of real estate
o $500+ Sale of Goods
o Co-signing and guaranteeing the debt of another

127

What is the parol evidence rule?

Prevents one party to a written contract from coming in after the fact and claiming that a certain
conversation took place that conflicts with what is agreed upon in the written contract

It also prevents using an oral argument to read into the meaning of what is written on paper

If it's on paper; it trumps what was agreed-upon orally prior to the written contract

Note: does not negate oral agreements made AFTER the contract or disallow oral words from clarifying ambiguous contract language.

128

What are the requirements for the assignment of a contract?

Contracts are assignable to a third party beneficiary; but must be done so in good faith

Obligations may be assignable- Assignor is still liable

Assignor may be released from liability if other party grants a novation

129

When can contracts be discharged by law?

Party under contract is bankrupt

Party under contract dies or is incapacitated

Party cannot physically complete the contract (i.e. They are in prison so can't finish building your house)

130

What is considered the biggest change to financial regulation since the Great Depression of the 1930s?

The Dodd-Frank Wall Street Reform Act of 2010

131

What is the goal of the Volcker Rule?

Banking Institutions maintain healthy capitalization ratios

132

How does the Volcker Rule limit banking institutions?

Limits banking institutions from owning more than 3% of a hedge fund's total ownership interest

Limits banking institutions from owning interests in hedge funds that exceed 3% of their Tier 1 Capital (Common Stock + Retained Earnings + non-redeemable; non-cumulative Preferred Stock)

133

What does the Volcker Rule require banking institutions to disclose?

Relationships with hedge funds must be fully disclosed to regulators

134

Describe the Federal Unemployment Tax Act

An employer-paid tax. Must file return and pay even if only one employee works there. Deductible to company - Not deductible by the employee. Allows employers to credit the FUTA liability by the amount of State Unemployment Tax (SUTA) they pay.

135

What are the major aspects of FICA and Social Security taxes?


Paid by Employer AND Employee - Employer withholds from employee's paycheck and must pay tax matching employee's withholding

If employer under-withholds; they are required to make up the difference

Self-employed individuals must pay both the employer and the employee share; which is Self Employment Tax

People drawing Social Security may have their benefits reduced if they go back to work and earn an income

136

When is an employee covered by Workman's Compensation?

Employees injured on the job get protection; even if they messed up and caused the injury themselves

Exception: If the employee intentionally harmed themselves; there is no Workman's Compensation

137

What age group is protected under Age Discrimination Laws?

They protect people ages 40 and above at companies where at least 20 people are employed

138

What are the tenets of the Occupational Safety and Health Act (OSHA)?

Employers should promote a safe workplace and environment for their employees to work in

Injury records must be kept
Penalties can be both
o Civil - $1;000 fine per day
o Criminal - Could include imprisonment

Employer can require a search warrant for OSHA to investigate their facilities

139

What types of discrimination are prohibited for employers based on civil rights laws?

Sex

Race

Religion

National Origin

140

What are the powers granted under the Environmental Protection Act?

EPA has the power to assess civil penalties for violating environmental laws like the Clean Air Act
The EPA can sue violators
Citizens can sue violators
States can sue violators
Citizens can even sue the EPA to force enforcement
For hazardous waste sites: owners; operators; transporters; and lenders associated with the site can
be held liable

141

What are the key points of the 1933 Securities Act?

Governs Initial Public Offerings (not subsequent sales). Covers registration statements and accompanying information filed with SEC. Information must include audited financial statements & a prospectus. Note: Even if a company is exempt from registering under the 1934 Act; they still must adhere to the anti-fraud provisions of the Act

142

What entities are exempt from filing registration statements under the 1933 Securities Act?

Banks; Commercial Paper; Farmers; Co-ops; Charities; Governments

Also exempt: Securities sold in ONE state; where investors are residents; 80% of business done in one state; and resales can't occur within 9 months to interstate parties.

143

What are the key points of the 1933 Securities Act; Regulation A?

Issuer can issue $50M of securities per year and be exempt if they file a notice with the SEC

Non-issuers (AKA a private individual) can sell $1.5M per year and be exempt

144

Under the 1933 Securities Act; Regulation D; what are Rules 504; 505 and 506?

Rule 504- Max Amount per year: $1M; Max Investors: Unlimited

Rule 505 - Max Amount per year: $5M; Max Investors: 35 Unaccredited or Unlimited Accredited

Rule 506 - Max Amount per year: Unlimited; Same as 505; but Unaccredited investors must be sophisticated

145

What are the registration form options under the 1933 Securities Act?

S-1 - Long Form or

S-2 and S-3 - Less Detailed and preferred by issuers

146

Name the securities registered under the Securities Act of 1933.

Stocks
Stock Options
Stock Warrants
Limited Partnership Interests - General Partnerships not allowed
Bonds

147

Who can sue under the Securities Act of 1933?

Purchasers of securities only

148

Name the Requirements for Accountant to be liable under the Securities Act of 1933.

Damages & Material Misstatements Only

o Reliance on financial statements are not a requirement unless purchased more than a year after the security is registered

Proving negligence is not a requirement

149

Name the Defenses of an Accountant under the Securities Act of 1933.

Accountant used Due Diligence

Accountant followed GAAS

Damages weren't caused by accountant's work

Plaintiff knew of the material misstatements

150

What does the Securities Act of 1934 govern?

The trading/selling of securities after the IPO

151

What reports must be filed under the Securities Act of 1934?

Form 10-K Annual Report - Must be audited

Form 10-Q Quarterly Report - Must be reviewed; but not audited

Form 8-K - A notice of a material event; Must be filed within 4 days of event

152

Who can sue under the Securities Act of 1934?

Purchases and Sellers of Securities

153

Name the Requirements for an Accountant to be liable for fraud under the Securities Act of 1934.

Damages

Material Misstatements

Reliance on financial statements

Scienter or reckless disregard for the truth

154

What procedures must an Accountant have in place under the Securities Act of 1934?

Accountant must have procedures in place to:
Determine if Going Concern is an issue
Determine if any material related party transactions occurred

Determine if material illegal acts occurred

155

Insider trading rules under the Securities Act of 1934 apply to which individuals?

Officers; Directors and 10% Owners

156

What are the Proxy Solicitation Requirements under the Securities Act of 1934?

Proxy must give shareholders audited balance sheets from 2 most recent years

o Requirement holds true even if one class of stock

157

What is the revenue limit for an Emerging Growth Company IPO?

$1 Billion

158

For an Emerging Growth Company IPO, how many years of audited financial statements are required?

2 years

159

How did Reg D, Rule 506 change under the JOBS Act?

General Solicitation and Advertising now allowed

160

Under the JOBS Act, what is the capital ceiling under Regulation A?

Reg. A Capital ceiling raised from $5M to $50M

161

Under the JOBS Act Title V - Private Company Flexibility and Growth, what is the shareholder limit if there are less than 500 non-accredited shareholders?

2,000

162

What is the purpose of a Consulting Engagement?

This engagement helps the client be more efficient with personnel and resources in order to accomplish their goals.

163

What is required by the Statements on Standards for Consulting Services (SSCS)?

Competence; Due Professional Care; Planning; Supervision; Obtain Sufficient Data; Serve Client Interest; Agreement: Written or Oral; Communicate w/ Client; Objectivity

NOT REQUIRED: Independence

164

What is the difference between Express versus Implied duties of an accountant under contract?

Express: Contract specifies what accountant will do

Implied: Accountant performs without negligence

165

Accountant's liability for negligence - What are the requirements?

DUTY - DAMAGES - RESULT

Duty - Accountant must have had duty to perform with due care exercised by an average accountant.

Damages - The client experienced actual damages.

Result/Causation - The damages were as a result of the negligence.

166

What is an Accountant's Liability for Detecting Fraud
(Under Normal Circumstances)?

It is not the accountant's job to find fraud and they are not normally liable for not detecting it

167

When can a client be sued for failing to detect fraud?

When a normal audit following GAAS would have detected the fraud.

When an accountant agrees to take on more responsibility than what is required under a normal audit.

When accountant words the audit report to indicate this greater responsibility.

168

When has an accountant committed fraud?

Misrepresentation - Accountant misrepresents MATERIAL fact(s)

Scienter - Accountant commits scienter

Damages - Client has actual damages.

Reasonable Reliance - Client reasonably relied on the misinformation.

169

What is Scienter?

To report something knowing it is false.

Characterized by reckless disregard for truth

Intentionally conceal facts

170

What is the Accountant's Liability to Third Parties - Privity Defense?

Lack of privity defends against contract breach and negligence.

NOT a defense against fraud.

171

The definition of Ultramares Decision:

Accountants are not liable to third parties unless the third party was an
intended beneficiary of the engagement AND the accountant knew they
would be relying on the financial statements.

172

What is Common Law Fraud?

Regular fraud

Misrepresentation of Material Fact
Scienter
Damages
Reasonable Reliance

173

What is Constructive Fraud?

Gross Negligence - reckless disregard for truth

CPAs usually not liable for simple negligence; but Gross Negligence (aka Constructive Fraud) opens the CPA up to be liable to third parties.

174

What are the required actions with Discovery of Illegal Activity?

Accountant must report discovered illegal activity to Audit Committee or Board of Directors

If material in public company; BOD has *1 DAY* to notify SEC.

175

What is the Accountant-Client Privilege?

NO Federal Accountant-Client privilege for non-disclosure of private
conversations to a court unless a particular state recognizes such a privilege.

If your client tells you Yeah; I cheated on my taxes; a court could force an accountant to testify about that conversation.

176

Accountant's Workpapers - Confidentiality Requirements

1. Can be subpoenaed
2. Can be looked at by another CPA doing peer review
3. Property of the accountant who created them

Note: Source documents supplied by client must be returned to client if they request them back; even if there is a billing dispute.

177

True or False: Accountants are responsible for knowing the personal finances of tax preparation clients.

Accountants have no way of auditing individual's personal finances and are not required to do so when preparing a return

178

When a past error is found in a client's tax return; what should an accountant do?

If a past error is found; accountant should inform client of this error.

Contacting the IRS is NOT required.

If client won't fix it; then the accountant should reconsider whether they want to do business with the client

179

Name the key responsibilities of an accountant when preparing a tax return.

Accountant must prepare the return in good faith and ask for more information if something is missing

When recommending a tax position; the accountant should realistically believe that it would stand up under the scrutiny of a court

180

What does Real Property include?

Land, Buildings fixed to the land, and Property under/above the land.

181

What are the characteristics of a deed?

Must be in writing
Signed
Description of Property
Delivered
Recorded

182

What are the characteristics of a Mortgage?

Must be in writing
Signed
Description of property
Delivered

183

What are the characteristics of a lease?

No writing required if

184

What is personal property?

Tangible property; such as cars; equipment; etc.

Intangible property such as patents; trademarks; copyrights; etc.

185

What are the three requirements for a gift?

Intent for it to be a gift

Delivery of the gift

Acceptance of the gift

186

What are the rights of found property?

Lost property - Finder's rights to property are less than Owner's

Abandoned property - Finder's rights to property are greater than Owner's

187

What is tenancy in common?

Undivided interest in a portion of the property

Upon death; property goes to decedent's heirs

188

What is joint tenancy?

Undivided interest in entire property

Upon death; property goes to other joint tenants

189

What sales are covered under the Uniform Commercial Code (UCC)?

Only sales of goods are covered under the UCC.

190

What elements are needed for a sale covered under the Uniform Commercial Code (UCC)?

Offer - You offer to sell something at a price

Acceptance - the other party accepts

Consideration - Something of value has been exchanged for the goods

Note: The UCC only covers sales of goods.

191

What are the elements of a Firm Offer?

You offer to sell something at a price and keep that offer open for a set period of time

3 months max

Only merchants can make firm offers

Must be in writing and signed

192

Under what situations are sales of goods covered by the Statute of Frauds? What are the exceptions?

If value of goods sold is > $500; sales contract must be in writing

Exceptions: Merchants can enter into oral contracts for > $500 items.

Oral contracts are binding for special or uniquely-made items (i.e. custom cabinets or custom furniture that could not be sold if buyer reneged)

193

When does title and risk of loss transfer on a sale of goods?

If terms are:

FOB shipping point: Title transfers at point of shipment (i.e. when loaded on truck)

FOB destination: Title and risk transfers once item is delivered

194

What is a Warranty of Title?

The seller has the right to sell the good and no one else can stake claim to that good

195

What is Warranty of Merchantability?

This good will do its intended purpose

Can be disclaimed

196

What is Warranty of Fitness?

This good is the right choice for you based on the seller's expert opinion

Can be disclaimed

197

What is strict liability with respect to buyer protection?

Manufacturers of goods cannot disclaim that their products will be safe

Can be liable if negligent

198

What are non-conforming goods with respect to buyer protection?

Buyer can reject some or all of the shipment if the seller didn't perform as agreed and ship what was expected

Must give notice

Must give seller a chance to remedy the situation

199

What is the statute of limitations with respect to buyer protection?

Buyer must sue to recover damages within 4 years.

200

When does a security interest attach; or become legally enforceable?

Secured interest must be supported by consideration given. Debtor must actually own the rights to the collateral or have possession. Secured interest much be recorded

201

What are the characteristics of perfection of interest in a secured transaction?

Gets higher priority over others claiming rights to collateral after the perfection takes place

Attachment must take place BEFORE perfection

202

How does perfection occur in a secured transaction?

By filing a financing statement

By possessing the collateral

203

When does automatic perfection occur in a secured transaction?

Store sells a consumer good on credit - Store retains security interest

A bank finances the purchase of a consumer good - Bank retains security interest

204

What are the priority rules for payment in a secured transaction?

If two parties are perfected; then the first one to file wins

If neither party is perfected; then the first one to attach wins

205

What are the advantages of a creditor holding a lien in a secured transaction?

Creditor holds priority over claims to collateral vs. unperfected security interests

Beats perfected security interests filed after lien attachment

Exceptions: Purchase money security interest; which has a 10 day grace period to be filed

Buyers purchasing in the ordinary course of business are immune from security interests held by merchants

206

How is shareholder basis calculated for a new interest in a Corporation?

Adjusted basis of property transferred + Gain recognized (if less than 80% ownership) - Boot received = Shareholder basis. If shareholders have 80% control after a property transfer, no taxable event occurs. If liabilities exceed basis on contributed property to a Corporation, a gain is recognized.

207

How is shareholder basis calculated for a TRANSFEROR of an interest in a Corporation?

Transferor's basis
+ Gain recognized by shareholder
= Basis

OR

FMV of Corporate Interest
- Adjusted basis of property
= Gain

208

What basis do shareholders and Corporations use for property?

They both use ADJUSTED BASIS, NOT FMV of property.

209

Describe how loss is taken on Section 1244 small business Corporation stock?

A loss on worthless stock is an ordinary loss.

210

What are the requirements for taking an ordinary loss on Section 1244 small business Corporation stock?

Taxpayer must be original stock owner, and either an individual or partnership

$50k (single) or $100k (MFJ) limit - remainder is a capital loss

Must have been issued in exchange for money or property (not exchanged for services)

Shareholder equity must not be in excess of $1 million

Both common and preferred stock is allowed

211

What are the basic rules for filing a form 1120?

Return is due regardless of income level

Return is due 3/15 if on a calendar year basis, or 2 1/2 months after end of fiscal year

An automatic six-month extension is available

212

When are Corporate federal tax estimated payments required, and how are they calculated?

Required if more than $500 in tax liability expected, or

100% current year liability

100% previous year liability

Note: If Corporation had more than $1 Million in revenue the previous year, the first estimated payment must be based on the previous year and the remainder based on the current year.

213

Describe the AMT calculation for C-Corporations

Taxable Income
+Tax Preference Items
+/- Adjustments
= Pre-ACE
+/- ACE Adjustments
= AMTI
- 40,000 Exemption
= Tax Base
x 20%
= Tentative Minimum Tax
- Regular Tax Liability
= AMT

214

What are the pre-ACE adjustments for C-Corporation tax AMT calculations?

Real Estate purchased between 1986 and 1999 using Straight Line Depreciation must depreciate over a useful life of 40 years

Personal Property - use 150% MACRS, not 200%

Construction must use % completion method

215

What are the ACE adjustments in the C-Corporation AMT tax calculation?

Municipal Bond Interest
Life Insurance Proceeds
70% Dividends Received Deduction
Organizational Expenditures must be capitalized, not amortized

Note: AMT paid gets carried forward indefinitely, but never carried back

216

When are C-Corporations exempt from AMT?

In year one

In year two, if year one gross receipts were less than $5 Million

In year three, if the average gross receipts for years 1 and 2 were less than $7.5 Million

In year four and beyond, if the average from the previous 3 years is less than $7.5 Million

217

How are gains and losses handled with respect to a Corporation's transactions involving its own stock?

Corporations have no gain/(loss) from transactions involving their own stock, including Treasury Stock.

If Corporation gets property in exchange for stock, there is no gain/(loss) on the transaction.

218

How are Corporate organization costs handled?

Amortization of costs begin the month the Corporation commences business activity

If the Corporation doesn't amortize organization costs in year one, they can never be amortized

Costs associated with offerings are neither deductible nor amortized

219

How are a C-Corporation's deductible charitable contributions calculated?

Sales -COGS= Gross Profit
Gross Profit + Rent, Royalties, Gross Dividends, Capital Gains
=Total Income
Total Income - Deductions (No charitable contributions, Dividends
Received Deductions (DRD), or NOL Carrybacks allowed)
- NOL Carryforwards
=Taxable Income before charitable contributions, DRD, NOL Carrybacks
x 10%
=Deductible Charitable Contributions

220

How are excess charitable contributions treated in a C-Corporations?

Excess charitable contributions get carried forward 5 consecutive years (No Carryback)

221

When can a board of directors authorize charitable contributions for a tax year?

The Board of Directors can authorized charitable contributions up to 3/15 and have them count in the previous tax year

222

How is the dividends received deduction (DRD) calculated, and what are the limitations?

80% Interest = 100% DRD

20-79% = 80% DRD

less than 20% = 70% DRD

Only allowed if no consolidated return is filed. Qualified dividends from domestic Corporations only.

223

What is the Dividends Received Deduction (DRD) calculation when there is a loss from operations?

Only take DRD % x Taxable Income

Note: If DRD brings a loss situation, then you can take the full DRD

If Taxable Income remains after DRD, only a partial DRD (T.I.. x DRD %) is allowed

224

How are Corporate losses on a sale to a Corporation where a taxpayer owns a 50% or more interest handled in a C-Corporation?

A loss on a sale to a Corporation where taxpayer owns a 50% or more interest is disallowed

225

How are capital losses handled in a C-Corporation?

Capital Losses are deductible only to the extent of Capital Gains

226

How are net short term capital gains taxed in a C-Corporation?

Net Short Term Capital Gains are taxed at ordinary income rates

227

How are Corporate losses carried back/forward?

Corporations can carry back losses 3 years and carry forward losses 5 years as a Short Term Capital Loss

228

How are bad debt losses handled in a Corporation?

Bad debt losses are classified as ordinary

229

What is the casualty loss floor for a C-Corporation?

No floor on Corporate casualty loss like there is with an individual taxpayer

If destroyed, the loss is the property's basis (minus proceeds)

Calculation: Adjusted basis - Proceeds from Insurance = Loss

If partially destroyed, take the lesser of FMV or adjusted basis reduction (minus proceeds)

230

How are net operating losses handled in a C-Corporation?

If loss includes NOL Carryforward, reduce the loss (add back the amount) to get the loss without the Carryforward

Then, carry back the NOL 2 years starting with the earliest year and reduce the taxable income there and then move to the most recent year

Any leftover NOL = This year's NOL

231

How is investment interest expense handled in a C-Corporation?

Unlike individual taxation, investment interest expense is not limited to investment income.

Investment interest on tax-free investments are NOT deductible.

232

What is the purpose of Schedule M-1 on a Corporate tax return? Which items are included?

Schedule M-1 reconciles book to tax income before Net Operating Loss/Dividend Received Deduction

Includes permanent differences (such as tax-exempt interest and non-deductible expenses) and temporary differences (accelerated depreciated tax depreciation, straight-line, etc.)

233

What is the purpose of Schedule M-2 on a Corporate tax return? How is it calculated?

Reconciles beginning to ending retained earnings

Beginning Unappropriated Retained Earnings
+ Net Income
+ Other Increases
- Dividends paid
- Other decreases
= Ending Unappropriated Retained Earnings

234

What is the purpose of Schedule M-3 on a Corporate tax return?

Like M1, but for Corporations with $10M+ in assets

235

How are affiliated (80%) Corporation tax returns handled?

Consolidation election is binding going forward

Dividends between them are eliminated, Advantage- Gains are deferred, Disadvantage- losses are deferred.

One AMT exemption

One accumulated earnings tax allowed

Note: In order to consolidate, the parent must have 80% voting power and own 80% of the stock value

236

How are Corporate distributions to shareholders handled?

Distribution is a dividend to the extent of current accumulated earnings and profits (ordinary income)

Then, remainder (if any) is a return of basis. Then, add'l remainder (if any) is a Capital Gain

Distribution amount = FMV of Property + Cash - Liability Assumed

Shareholder basis = FMV of Property + Cash received (basis not reduced by the attached liability)

237

What is the order of treatment in a Corporation's distribution to a shareholder?

1. Distribution is a dividend to the extent of current and accumulated earnings and profits

2. Shareholder basis is then exhausted

3. Remainder, if any, is a Capital Gain

238

What is the basic calculation for accumulated earnings and profits in a Corporation?

Beginning Accumulated Earnings and Profits
+ Net Income
+ Gain on Distribution (if not already in book income)
- Distribution (but cannot create a deficit)
- NOL of prior years
= Ending Accumulated Earnings and Profits

239

What is the treatment of a gain in a complete Corporate liquidation?

If Capital Property, then Capital Gain

If Non-Capital Property, then Ordinary Income

Gain characterization is the same for both the Corporation and the shareholder

240

What is the treatment of a loss in a complete Corporate liquidation?

Corporation: Depends on if property is capital in nature, otherwise ordinary loss

Individual: capital loss only

241

What is the treatment of the liquidation of a subsidiary?

No G/L to parent company

242

What is a consent dividend? How is it treated?

Consented by the Board of Directors but not yet paid

Treat as if distributed by the end of the year

243

Describe the requirements for a personal holding company.

No banks or financial institutions can be PHCs

5 or fewer individuals own more than 50% of the stock

60% of the PHC's income must be from passive means

PHC tax is self-assessing - 20% tax rate on undistributed PHC Income

244

How is Corporate accumulated earnings tax (AET) different from PHC taxation?

Not Self-Assessing like a PHC

245

How is the accumulated earnings credit calculated for a Corporation?

Take greater of $250,000 ($150,000 for Service Corps) or the legitimate balance based on future needs (i.e. purchasing a building)

246

What are the requirements for holding S-Corporation status?

Only individuals, estates and trusts can be shareholders

Domestic only, no international S-corps or foreign shareholders

Up to 100 shareholders allowed, and only one class of stock allowed

Calendar tax year only

247

How is an S-Corporation election made?

Election for S Corp status must be made by 3/15 and counts as being an S Corp since the beginning of the year

To make election, 100% of the shareholders must consent

248

How is an S-Corporation terminated?

To terminate election, 50% of the shareholders must consent

No S Corp election allowed for 5 years after termination

S Corp termination effective immediately following an act that terminates status

249

What items are not included in calculating an S-Corporation's ordinary income?

These items are included on Schedule K, not in ordinary income:

Foreign Taxes paid deduction
No Investment Interest expense
Section 179 Deduction
1231 Gain or Loss
Charitable Contributions
Portfolio Income (dividends or interest)

250

How is S-Corporation shareholder basis calculated?

Beginning Basis
+Share of Income Items (including non-taxable income!)
-Distributions (cash or property)
-Non-deductible expenses
-Ordinary Losses (but don't take income below zero)
= Ending basis

251

What is the formula for an S-Corp Built-in Gains Tax?

FMV of Assets @ S-Corp Election Date - Adjust. Basis of Assets = Built-in Gain x 35% Corporate Rate

252

How is Gift taxation different from Estate taxation?

Property transferred while taxpayer is living

253

What is the annual exclusion amount for a taxpayer's Gift taxation? What is required to get the exclusion?

$14,000 per year per spouse to each individual

In order to get the exclusion, the recipient must immediately acquire a present interest in the property and get unrestricted access to the property and all of its benefits

254

If a Gift is an annuity, what value is used for the Gift?

If the Gift is an annuity, use Present Value to determine the gross Gift

255

What is the basic Gift tax calculation?

Gross Gifts
- 1/2 of Gifts (treated as given by spouse)
- Total # of donees x $14,000 exclusion
= Taxable Gift

256

How is a Gift taxed if a recipient gains a future ownership in the Gifted property?

Recipient must gain ownership and all rights to property to get the annual exclusion. If recipient merely gains a future ownership, then the present value of the Gift is 100% taxable to donor and cannot exclude from Gift tax calc

257

What are the deductions for Gift tax, besides the annual exclusion?

Tuition and medical expenses paid directly to the provider organization (note: NOT books or dorm fees)

Political contributions

Charitable Gifts

Unlimited Gifts to spouse

258

What is the basis of Gifted property for the recipient?

If a loss on sale, basis is FMV on the date of the Gift

If a gain on sale, basis is same as donor's basis

No G/L if donor basis is less than sales price, and sales price is less than FMV @ Gift date

259

How/when are Gift tax returns filed?

Calendar-year basis only

Due April 15

260

What are the basic characteristics of complex Trust?

Income distributions are optional
Accumulation of income ok
Charitable contributions ok
Contributions using tax-exempt income are not deductible
Allowed personal exemption of $100

Key Point: Distribution of Trust corpus (principal) ok

261

What are the basic characteristics of a Simple Trust?

Income distributions mandatory

Accumulation of income disallowed

No charitable contributions

Distribution of Trust corpus DISALLOWED

Allowed personal exemption of $300

262

How are Net Operating Losses handled in a Trust?

Trusts can have a Net Operating Loss

Any unused NOL flows through to the beneficiaries

263

How are expenses and fees related to tax-exempt income handled in a Trust?

Expenses and fees from tax-exempt income are not deductible for either a Complex or Simple Trust

264

When is property transferred in an Estate?

After the death of the donor

265

What amount of a decedent's Estate is exempt from Estate Tax?

The First $5,430,000 is exempt with a 40% tax on amount above that

266

How are a decedent's medical expenses handled with respect to an Estate?

Medical expenses paid after death, but incurred within 1 year of death go on decedents personal tax return

267

How is an Estate's NOL handled?

Estates can have a Net Operating Loss

Any unused NOL flows through to the beneficiaries

268

What does a gross Estate consist of?

Cash and Property FMV at death, or alternate valuation.

269

What is joint tenancy with respect to an Estate? How is it calculated?

When two non-spouses jointly own property

FMV at death X % Ownership = Amount in Estate

270

What is tenancy by entirety?

1/2 of marital assets go to deceased spouses Estate

271

What is tenancy in common in an Estate?

A, B, and C own property

If A dies, FMV of As share goes to heirs

272

How is Estate tax handled with respect to a beneficiary?

Property received through inheritance not income to recipient

Property value is FMV at date of death or 6 months later

If property is sold prior to 6 month date and the alternative date is used, FMV at date of sale is used to value property

Basis in property automatically assumes LT holding period

273

What is distributable net income (DNI)?

DNI = Taxable Income Expenses (from income production)

Trust beneficiaries only pay tax if earnings are distributed

Estate beneficiaries pay tax on DNI, regardless if distributed

274

When must a tax exempt organization file a 990-T for Unrelated Business Income?

If a tax exempt organization has more than $1,000 of UBI, it must file a Form 990-T

275

What are the requirements for a 501(c)3 organization?

Organized and Operated exclusively for exempt purposes

No earnings can benefit an individual or private shareholder

Cant attempt to influence legislation as a major part of its activities

Cant campaign politically

276

Under what accounting basis are individual tax returns prepared?

Cash Basis. Note: This basis is NOT allowed for Corporations, Partnerships with a C-Corp partner, or for inventories.

277

What are the deductions to arrive at Adjusted Gross Income (AGI) for individuals?

*MSA/HSA contributions
*Investment penalties for early withdrawal
*Self-employed medical insurance premiums
*Self-Employment Tax (approx. 50%)
*IRA Contributions
*Student loan interest (can't be another taxpayer's dependent)
*Moving expenses
*Alimony
*Attorney fees in discrimination lawsuit

278

Which items can be carried over to future years on an individual tax return?

Investment interest expense in excess of investment income
Charitable contributions
Excess Section 179
Capital losses
AMT Paid
Passive Activity Losses

279

Characterize the following carryover: Passive Activity Loss

No carryback

Can carry forward indefinitely

280

How is excess 179 expense carried forward?

Carry forward to next year.

Use in any year is limited to taxable income.

281

How long can investment interest expense in excess of investment income be carried forward?

Indefinitely.

282

How long is the carry forward for charitable contributions?

Can be carried forward 5 years.

283

How long is AMT paid carried forward, and how is it applied?

It can be carried forward indefinitely.

It may be applied against future *regular* income tax, but not against future AMT tax liability.

284

How are capital losses applied in individual taxes?

$3,000 net capital loss can be taken in each year, the rest is carried forward indefinitely.

The loss retains its character (STCL or LTCL).

285

How does an individual capital loss carryover differ from a corporate capital loss carryover?

Corporate capital loss carryovers may be carried back 3 years and forward 5 years. Individual capital losses are carried forward indefinitely.

Individual capital loss carryovers retain their character (STCL or LTCL). Corporate loss carryovers are carried forward as STCL only.

286

What ratio is applied to principle payments in an installment sale to determine the gain in a given year?

Gross Profit / Contract Price

287

What is the contract price in an installment sale for income tax purposes?

Contract Price = Sales Price - Liability assumed by buyer

288

On an individual return, regular mortgage interest on what loan amount is deductible?

$1,000,000

289

Interest on home equity loans up to what amount are deductible on an individual tax return?

$100,000

290

What business gift amounts are deductible on Schedule C of form 1040? What amount for service awards?

$25 per person for gifts

Service awards up to $400

291

What income can business losses offset on a 1040?

They may only offset active business income.

Note: W2 wages are considered active business income.

292

What income can passive losses offset on a 1040?

Only passive income such as rental income or limited partnership income.

Note: Wages are ACTIVE (cannot be offset by passive) and Interest/Dividends are PORTFOLIO (cannot be offset by passive)

293

Are interest and dividends active or passive income?

Neither. They are portfolio income.

294

What is (are) the depreciation convention(s) for personal property?

Mid-year/Mid-quarter

295

When is the mid-quarter convention used?

For depreciation when 40% or more of all purchases occur in 4th quarter.

296

What depreciation convention is used for real property?

Mid-month

297

What depreciation life and convention are used for leasehold improvements?

15 year straight line (S/L)

298

What amount of business start-up costs can be deducted? How is it expensed?

Up to $5,000

Amortized over 180 months

Reduced dollar-for-dollar by amount over $50,000

299

How are medical expenses deducted on a 1040?

On Schedule A:

Amounts in excess of 10% of AGI may be deducted

300

Which personal insurance premiums are not deductible as medical expenses on Schedule A?

Accident or disability insurance premiums are not deductible.

301

Under what circumstances can medical expenses paid on behalf of another be deducted on someone's Schedule A?

Must be a citizen of North America

Must live with you, or if they do not, must be mother/father or a relative closer than a cousin.

Benefactor must provide more than 50% support to the beneficiary.

302

Which foreign taxes are deductible?

Foreign INCOME and REAL ESTATE taxes are deductible.

Foreign personal property taxes are NOT deductible.

Foreign tax assessments are not deductible- they are added to the basis.

303

How is net investment income calculated, for the purpose of deducting excess investment interest expense?

Gross investment income - investment expense in excess of 2% of AGI = net investment income

Investment interest expense in excess of net investment income is deductible.

304

What investment interest is never deductible?

Investment interest expense on tax-free securities is not deductible.

305

When are mortgage points deductible and how are they deducted?

They are deductible if they represent prepaid interest on purchase of a new home or improving a home.

Refinance points are amortized over the life of the mortgage.

306

How are charitable contributions of LTCG property and property related to a charity's function deducted?

Deducted at fair market value (FMV), up to 30% of AGI

307

How are charitable donations for STCG property and property not related to the charity's function deducted on Schedule A?

Deduction is taken for adjusted basis in the property, up to 50% of AGI.

308

Does a casualty loss affect the basis of property?

No. It decreases the fair market value (FMV) of the property.

309

How is the deductible portion of a casualty loss calculated?

Take the lower of either A) Decrease in FMV or B) Basis in property (call this number GROSS LOSS)

GROSS LOSS - insurance proceeds received - $100 - 10% of AGI = Deductible casualty loss

310

What are the miscellaneous deductions on Schedule A, and how are they deducted?

Deductible in excess of 2% of AGI

Continuing Education - if required to keep your job
Business travel
50% Meals and entertainment
Union Dues
Tax prep fees
Legal fees to collect alimony
Appraisal fees to value casualty loss of charitable contributions

311

Which itemized deductions are not subject to phaseout based on income or other factors?

Medical
Casualty
Gambling
Investment Interest Expense

312

Define qualifying child for most individual tax factors.

Must be resident of North America

Under age 19, or under age 24 if a student

313

Define qualifying relative for most individual tax factors?

Must be citizen of North America

Must live with you, unless mother/father or relative closer than a cousin

You must provide more than 50% support to the individual

314

How is minor income taxed at a parent's rate calculated (AKA kiddie tax)?

Child's unearned income
- early withdrawal penalties
- $1,050
- Greater than $1,050 or child's itemized deduction related to unearned income
= Amount taxed at parents' rate

315

Can spouses married filing jointly use different accounting methods?

Yes, if they each own a small business. All non-business income is cash basis.

316

At what rate is self-employment tax assessed?

15.3% of net earnings from self-employment

(Note: executor of an estate is NOT self-employment income)

317

What is a refundable tax credit? Which individual tax credits are most commonly refunded?

A tax credit which takes the taxpayer's tax owed on the return below zero, resulting in a refund to the taxpayer.

Earned Income Credit (EIC), American Opportunity Credit and the Additional Child Tax credit.

Note: the REGULAR child tax credit is NOT refundable.

318

How many education credits may be taken on a tax return?

American Opportunity Credit - per student

Lifetime Learning Credit - per taxpayer

Note: The American Opportunity Credit is refundable.

319

What estimated tax payments must be paid in by an individual taxpayer either via withholding or by quarterly tax payments?

The lesser of:

90% of current year's total tax

100% of prior year's total tax

110% of prior year's total tax (if AGI is $150,000 or more)

320

Which farming costs related to land are deductible? Which aren't?

Deductible: Costs incurred to PRESERVE soil/water

Non-deductible: Costs incurred to drain wetlands or prep for irrigation (i.e. improve land)

321

Which depreciation table is used for personal tangible property related to farming?

MACRS 150

322

How long does the taxpayer have to petition the court for appeal after an audit?

90 days

323

If no petition to appeal is filed, how long does a taxpayer have to pay tax due after an audit?

10 days

324

What is the statute of limitations for a tax audit?

3 years, generally

6 years if 25% or more of gross income was omitted

The clock starts on the LATER of the due date or the filing date of the return.

There is NO STATUTE OF LIMITATIONS for either fraud or failure to file a required return.

325

How long does an individual taxpayer have to file a claim for refund?

Refunds must be claimed within 3 years of the return due date or within 2 years of being paid, whichever is later.

326

When are life insurance premiums of an employee includable in income?

Premiums paid by an employer for coverage in excess of $50,000 per employee are includable in income.

327

When are scholarships not taxable?

When they are not in return for services rendered,

AND

The money is used *only* for tuition and books

Note: Scholarships for room and board are includable in income.

328

What interest income is tax free?

State & municipal bond interest

US EE Savings Bond interest (note: HH bond interest is taxable)

329

Which dividend income is tax free?

S-corporation (actually distributions)

Life insurance

330

How much social security income can be taxed for individuals in higher income brackets?

Up to 85%

331

Is unemployment compensation taxable?

Yes.

332

Which damages awarded in lawsuits are taxable? Which are not?

Payments made to make you whole are NOT taxable (i.e. to pay for losses of property, body parts or earning ability)

Any payments for punitive damages ARE taxable.

333

Are workman's compensation insurance benefits taxable?

No - similar to an award for damage to make a person whole.

334

Which of the following are taxable: Child Support, Divorce Property Settlements, Alimony

Alimony IS taxable.

Child support and divorce property settlements are NOT taxable.

335

Adoption expenses - Are they deductible?

NO, they are not deductible. However tax benefits are available through the adoption CREDIT.

336

Describe alimony recapture.

2nd Year: (3rd year - 2nd year - $15,000)

1st Year:
1st Year Alimony Paid
- Avg alimony paid in 2nd & 3rd years
- $15,000
- Recapture from 2nd year
=1st Year Alimony Recapture

Total Recapture = 1st Year Recapture + 2nd Year
Recapture

337

How are Net Operating Losses (NOLs) utilized?

Can be carried back 2 years

If any left, can be carried forward 20 years.

338

Which IRA contributions are deductible?

Traditional IRA = deductible

Roth IRA = not deductible

339

When can a couple file married filing jointly?

They must be married at the end of the year.

If one spouse dies, they must be married at the end of the year.

340

What are the requirements for filing as Head of Household?

Must have a dependent child

Must provide more than 50% of the child's support

Must live with them more than 50% of the year

341

What are the requirements for filing as qualifying widower?

Must have a dependent child.

Essentially gets MFJ status for the year of death + 2 tax years

342

What is the Interstate Income Act of 1959?

Restricts a state's authority to tax interstate commerce

343

What are the principles of the Interstate Income Act of 1959?

A state can't collect income tax on sales within its borders as long as the orders are filled and shipped outside of the state

Applies to tangible property only

Does not protect a Corporation in the state where incorporated

Does not protect from taxes using metrics other than income (Ex: Sales Tax)

344

What is the Uniform Division of Income for Tax Purposes Act (UDITPA)?

Uniform criteria for determining taxable income of multi-state corporations

Also known as the Multi-State Tax Compact

345

What are the basic principles of UDITPA?

Designed to ensure a company is not taxed more than once on its income

Forces a corporation to segregate Business Income from Non-Business Income

346

What is considered Business Income?

Part of the corporation's regular course of business

Includes acquisition of tangible and intangible property if such activities are part of the regular trade or business

347

True or false? Partnerships are a taxable entity.

False. Income and expenses flow through to the partner to be taxed via a
Form K-1.

348

When exchanging property for a partnership interest; how is gain or loss recognized?

Neither gain nor loss is recognized in an exchange of property for a partnership interest. It is a non-taxable event.

349

What is a partner's basis in partnership property?

Initial basis for partnership property is the basis of the property that was contributed or exchanged for the partnership interest.

350

When services are exchanged for a partnership interest; how is this treated for tax purposes?

It is a taxable event; treated the same as compensation for the services. The taxable income equals the % of partnership interest received times the FMV of the partnership.

i.e. the FMV of the interest received is the taxable income for the service provider.

351

What is the partner's basis in a partnership when they provide a service in exchange for the interest?

The basis in the partnership interest is the amount of taxable service revenue provided by service provider.

352

What is the holding period of an asset that has been contributed to a partnership?

The partnership inherits the holding period of the asset contributed.

The exception of inventory- the holding period begins when contributed.

353

What is the tax treatment of startup costs for a partnership?

Tax treatment is the same as that of an individual taxpayer.

However syndication fees are not deductible or amortized.

354

What deductions are subtracted from gross revenues to arrive at partnership income?

COGS
Wages - except for partners
Guaranteed payments to partners
Business bad debt (if on accrual basis)
Interest paid
Depreciation (except section 179)
Amortization (Startup costs; goodwill; etc)

355

How are partnership losses taken on an individual's return?

Losses cannot be taken beyond a partner's basis in the partnership

Losses in excess of basis are carried forward until basis is available

356

When are guaranteed payments to a partner includable in taxable income?

They appear in partner's income during the year in which the partnership's fiscal year CLOSES.

357

How are partner benefits paid by the partnership treated?

Health insurance; life insurance and other benefits paid on behalf of the partner are treated as guaranteed payments and are includable as self-employment income.

358

How is net self-employment income from a partnership interest calculated?

Partner's % share of ordinary income from partner's K-1
+ Guaranteed payments
- Partner's % share of section 179 expense from K-1
= Self-employment income (subject to SE tax)

359

In general; what is a partner's basis in partnership property purchased?

Partner's basis is basis of goods exchanged or for services exchanged is FMV of partnership interest received.

If purchased; purchase price less liabilities incurred = basis.

For a gifted interest in a partnership; gift basis rules apply.

360

Which items are not deductible on Schedule K of form 1065?

Foreign tax paid
Investment interest expense
Section 179 expense
Charitable contributions

Mnemonic: IFC179

361

Which items are not counted as income on Schedule K of form 1065?

Passive Income
Portfolio Income
1231 Gain or Loss

Mnemonic: PP1231

362

How is adjusted partnership basis calculated?

Beginning partnership basis
+ Capital contributions
+ Share of ordinary partnership income
+ Capital gains
+ Tax-exempt partnership income (DON'T FORGET!)
= Ending partnership basis

363

What items DECREASE partnership basis?

Money distributed
Adjusted basis of property distributed
Partners's share of ordinary losses
Partnership is relieved of a liability (considered a distribution)

364

What INCREASES partnership basis?

Partnership getting a loan
Capital contributions
Ordinary income
Capital gains
Tax-exempt income

365

How do liabilities either INCURRED or RELIEVED affect a partner's basis in a partnership?

If the partnership gets a loan; this INCREASES basis.

If partnership is relieved of a liability; this DECREASES basis.

366

How do guaranteed payments affect partnership basis?

They do not affect basis- they are already included in ordinary income; which affects basis.

367

What is the order in which basis is adjusted in a partnership?

1. Increase basis (all items; including tax-exempt income)
2. Distributions
3. Losses (limited to basis)

368

How is the taxable year of a partnership determined?

It must be the same as 50% of the partners and use the same tax year for 3 years once adopted.

369

How does death of a partner affect the partnership's taxable year?

The taxable year closes with respect to the decedent partner's interest ONLY.

370

When CAN'T a partnership use cash basis?

1. They have inventories
2. Partnership is a tax shelter
3. Has a corporate partner
4. Gross receipts are $5 Million or more

Exception: If gross receipts are $1 Million or LESS and Partnership maintains inventories; Cash method is ok.

371

When does a partnership terminate?

When there is less than 2 partners (only one partner)

When 50% of the partnership interests sell within a 12 month period- partnership IMMEDIATELY terminates.

372

How is gain or loss on sale of a partnership interest calculated?

Gain or Loss = Amount realized on sale - basis in partnership interest

373

What is the new basis of a partnership interest sold?

Basis = Capital account + Liabilities assumed

374

How is the sale of non-capital partnership property treated?

As ordinary gain/loss.

Items that fall into non-capital category would be unrealized receivables; appreciated inventory; and similar.

375

How is a partner's share of an ordinary gain calculated?

FMV of Assets (non-capital)
- Adjusted basis of assets
= Ordinary gain
x Partner's % interest
= Partner's share of gain

Note: No gain or loss will be recognized by a partnership upon distribution of property.

376

What is the order of basis reductions for distributions from a partnership?

1. Money distributed
2. Adjusted basis of unrealized receivables and inventory
3. Adjusted basis of other property

Note: Only MONEY distributions will trigger a gain in a partnership distribution.

377

When can a LOSS occur in a partnership distribution?

Only in a liquidating distribution.

378

What are the requirements for recognizing a gain in a partnership liquidating distribution?

1. Money was distributed
2. Unrealized receivables were distributed
3. Appreciated inventories were distributed

Otherwise; no loss recognized.

379

What is the basic calculation for basis in property?

Cost of property + Purchase expenses + Debt assumed + Back taxes and interest paid = Basis. Note: taxes and interest related to time when a taxpayer did not own the property are not deductible - they are added to basis.

380

What is the recipient or donee's basis on gifted property?

Sold at a gain: use donor's basis

Sold at a loss: use lesser of donor's basis or FMV at time of distribution

Sold in between donor's basis and FMV: No gain or loss

381

What is the basis and holding period of inherited property?

FMV at date of death or alternate valuation date (6 months later)

If alternate date is elected by property is sold before 6 month window; use FMV at date of death.

Property inherited is LTCG property regardless of how long it is held by the recipient.

382

What is the holding period on a stock dividend?

Holding period of new stock received from a dividend takes on the holding period of the original stock

383

What property is eligible for like-kind exchange treatment?

Real for real or personal for personal business property only

US property only

384

What is BOOT in a like-kind exchange?

Cash received + unlike property received + liability passed to other party

385

In a like-kind exchange; how is it handled if a netting of mortgages results in net boot paid?

DO NOT subtract the boot paid amount from the cash received

Ignore the boot paid amount from the mortgage completely

386

What is an involuntary conversion? When does it not result in a gain?

Occurs when you receive money for a property involuntarily converted

There is no gain if you reinvest the proceeds completely

If proceeds not completely reinvested; gain is LESSER of realized gain or amount not reinvested.

387

What are the requirements for exclusion of gain on a primary residence? How are losses treated?

Must live there 2 out of 5 years

Loss on sale of home is NOT deductible

388

What is a wash sale?

30 Day rule applies

Disallowed loss adds to basis of new stock

New stock takes on date of acquisition of old stock

389

Who is considered a related party in a property transaction? How does it affect the transaction?

Ancestors; siblings; spouse; descendants; corporation or partnership where you're a 50% shareholder

Seller cannot take a loss on sale to a related party; but gain is always recognized.

Related party gets to use the disallowed loss when they sell.

Related party's holding period begins when they acquire the property.

In-laws are NOT related parties.

390

How are capital losses taken in a corporation?

capital losses only offset capital gains

Carryback 3 years - if you elect NOT to carryback; you lost the option in the future

Carry forward 5 years - only as STCL

391

What assets are NOT capital assets?

Inventory; Business interest; Accounts Receivable; Covenant not to compete

Goodwill IS a capital asset

392

What are the steps in applying a capital gain or loss?

Net all STCG and STCL

Net all LTCG and LTCL

Add together

Deduct $3;000

393

How much ordinary income can be offset by an INDIVIDUAL's capital losses?

$3;000 per year. Unused is carried forward and taken $3;000 each year.

No carryback is allowed.

394

Which property is governed by section 1231?

Real or Personal Business Property held more than a year

Inventory is never 1231 Property

395

How are section 1231 gains and losses handled?

Casualty Losses on 1231 Property - Net the losses
* Net Loss = Ordinary Loss
* Net Gain = Combine with other 1231 Gains

1231 Net Loss - If 1231 Losses exceed gains; treat as Ordinary Loss

1231 Net Gain - If 1231 Gains exceed losses; treat at LTCG

1231 Gain = LTCG

1231 Loss = Ordinary Loss

396

How is section 1245 depreciation recapture handled; and when does it apply?

To the extent of depreciation; treat as ordinary gain
Remainder is 1231 gain; which is LTCG - There are no 1245 Losses

1231 Gain = LTCG
1245 Gain = Ordinary
Casualty Gain = LTCG

1231 Loss = Ordinary
1245 Loss = N/A
Casualty Loss = Ordinary

397

What property qualifies for section 1250 treatment; and how are gains/losses handled?

1250 property is Real Estate
Use 1250 for Gain only. For losses; use 1231

Individuals: Post-1986 property with a gain is 1231 LTCG

If Straight Line depreciation is used; don't use 1250 - Entire gain is 1231

Corps: Section 291 requires 20% of depreciation classified as ordinary gain
Remainder is 1231 LTCG

398

When are 1231; 1245 and 1250 gains or losses always ordinary?

When the asset is held less than one year.