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How Should You REALLY Structure a 1031 Exchange?

Anderson Business Advisors Podcast · 2026-08-11 · 1h 7m

0:00--:--

Key moments - from our scoring

Substance score

62 / 100

Five dimensions, 20 points each

Insight Density14 / 20
Originality11 / 20
Guest Caliber12 / 20
Specificity & Evidence13 / 20
Conversational Craft12 / 20

Amanda Winalda and Elliot Thomas from Anderson Business Advisors walk through practical tax scenarios submitted by real estate investors and business owners. The discussion begins with acquiring equity in family businesses - explaining the critical differences between capital interests and profits interests in partnerships, the 83B election mechanics for unvested interests, and how to layer ownership through S Corps or LLCs for asset protection and deduction benefits. They address using oil and gas intangible drilling cost (IDC) deductions as a tax offset strategy when withdrawing from traditional IRAs early, calculating potential deductions of 70-80% and weighing this against the 10% penalty and income tax owed. The team covers amended return procedures, the three-year lookback window from the original file date, and the implications of adding previously-unused tax strategies to prior-year returns. Additional topics include structuring 1031 exchanges while funding replacement property with solo 401k assets, ADU home office deductions and depreciation calculations, and whether S Corp elections attract more audit scrutiny than Schedule C filers. This episode is particularly valuable for investors juggling multiple real estate holdings, partnership structures, and alternative investment strategies who want to optimize historical tax filings and future transactions without triggering unintended tax consequences.

Key takeaways

  • →When receiving ownership in a partnership, a profits interest is typically preferable to a capital interest because it avoids immediate ordinary income taxation and allows an 83B election to lock in current value with all future appreciation taxed as capital gains.
  • →Oil and gas IDC deductions can offset 70-80% of your investment immediately, significantly reducing the tax hit of an early IRA withdrawal, but this should be evaluated alongside other options like rolling to a solo 401k to borrow funds tax-free instead.
  • →You can generally amend prior tax returns within three years of the original file date or two years from when you paid the tax, and unused tax strategies from previous years can be applied through amended returns if they meet current requirements.
  • →Holding a partnership interest through a separate entity like an S Corp or LLC provides an additional layer of asset protection against personal lawsuits while enabling deductions like accountable plan reimbursements and potentially medical reimbursement plans.
  • →1031 exchanges combined with solo 401k funding require careful structuring to avoid prohibited transaction issues and must address how replacement property is titled and funded to maintain both exchange compliance and retirement account rules.

Guests

Amanda WinaldaElliot Thomas

Topics in this episode

S-Corp election1031 exchangesSolo 401k loansOil and gas intangible drilling costs (IDC)Capital interests vs. profits interests83B electionPartnership tax treatmentLLC asset protectionAmended tax returnsAccountable plan reimbursements

Questions this episode answers

What's the difference between a capital interest and a profits interest in a partnership?

A capital interest means you own a percentage of the company's current value; if the company sold today, you'd get that share of proceeds. A profits interest gives you only future profits and appreciation going forward, with no stake in current company value. The profits interest avoids immediate income taxation when granted.

What is an 83B election and when should you make it?

An 83B election lets you claim unvested or restricted partnership/stock interests as taxable income immediately at their current fair market value, rather than waiting until they vest and paying tax on the much higher appreciated value. You must file it within 30 days of receiving the interest, after which all future appreciation is taxed as capital gains.

Can I deduct 70-80% of an oil and gas investment as intangible drilling costs?

Yes, intangible drilling costs (IDC) - the wages and labor costs to set up an oil rig - can typically be deducted at 70-80% of your investment immediately in the year you invest. Tangible costs like physical equipment are depreciated separately.

How far back can I amend a prior tax return to claim missed deductions?

You can amend a return up to three years from the original file date or two years from when you paid the tax liability, whichever is later. This lets you add strategies your previous preparer missed.

Should I hold a partnership interest directly in my name or through an entity?

Holding it through an entity like an S Corp or LLC provides asset protection (an extra layer so you're not personally liable if sued) and may open tax deductions like accountable plan reimbursements and medical reimbursement plans that aren't available through direct personal ownership.

What our scoring noted

Our reviewer’s read on each dimension, with quotes from the episode.

Insight Density

14 / 20

The episode delivers substantive tax and legal strategies with concrete details (e.g., 70-80% IDC deductions, 83B elections, partnership vs. capital interests, 1031 exchange rules), but is heavily padded with Q&A logistics, self-promotion, and repetitive setup explanations that dilute the insight-to-time ratio. A real operator learns actionable frameworks, but must wade through 20+ minutes of housekeeping.

if I'm going to receive that capital interest and it's not vested, which means I can't transfer it right now, and there's Still a substantial, uh, chance of, uh, forfeiture, a risk of forfeiture. Well, then I don't have to pay any tax at that moment if it's not vested.
70 to 80% of a tax deduction based on the investment

Originality

11 / 20

The content covers standard tax playbooks (S corps vs Schedule C, 1031 exchanges, accountable plans, partnership capital vs. profit interests) that circulate widely in tax and real estate circles. While competently executed, there is minimal contrarian thinking or first-principles reasoning; the episode recycles established frameworks rather than challenging assumptions or offering novel angles on common problems.

S corps are only allowed to be owned by individuals
Schedule C is anywhere from 400 to 1000% more likely to get audited than an S Corp

Guest Caliber

12 / 20

Elliot Thomas is presented as a Tax Advisor at Anderson Business Advisors with legal and tax credentials, but the transcript provides no evidence of significant operator experience, deals executed at scale, or real-world business building. He appears to be a specialist advisor rather than a seasoned founder or practitioner who has deployed these strategies in high-stakes environments. Amanda Winalda is a co-host with similar positioning but limited independent credibility demonstration.

This is Elliot Thomas, manager of Tax Advisors.
we're lawyers and we are into tax

Specificity & Evidence

13 / 20

The episode contains concrete numbers and tax code references (70-80% IDC, 21% C-corp rate, $1,500 Schedule C home office limit, $50k solo 401k loan, 30-day 83B filing window, 3-year amendment window) but lacks named case studies, real client examples, or specific transaction walkthroughs. Most examples are hypothetical illustrations rather than documented outcomes, limiting credibility and depth.

anywhere from 70, 80 it could be more, could be a little bit less, will be immediately deducted as an intangible drilling cost
you can borrow up to $50,000 out of the solo

Conversational Craft

12 / 20

The co-hosts ask competent follow-up questions and occasionally challenge vagueness (e.g., pushing back on the IRA-oil-gas strategy to ask what the actual goal is), but many questions are softballs read directly from submitted Q&A. The hosts rarely disagree, dig into contradictions, or press for edge-case thinking. Conversational flow is friendly but lacks the sharp, productive tension that signals rigorous thinking.

I'd really want to know, if I was doing a consult with this client, I'd really want to take a step back and say, what are you trying to. Trying to achieve?
Whereas the profits interest, I generally am not taxable at that moment when it's granted to me because it's everything going forward.

Conversation analysis

Computed from the transcript - who did the talking, and the words that came up most.

Share of words spoken

  • Speaker A52%
  • Speaker B48%

Most-used words

property47back30corporation26office25corp23question22ownership22plan22partnership21strategy19home18state18asset18interest18schedule17situation17

Episode notes

In this episode, Anderson attorneys Amanda Wynalda, Esq., and Eliot Thomas, Esq., answer listener questions on tax planning, entity structuring, and asset protection for real estate investors. They discuss the best tax strategies for investors who own multiple rental properties as sole proprietors and examine whether converting an S Corporation that owns rental property into an LLC could trigger property tax reassessments or other tax consequences. Amanda and Eliot also explain the rules surrounding home office deductions, including using a detached ADU as a dedicated workspace and claiming deductions for business storage in a garage. They cover the differences between operating as an S Corporation with an accountable plan versus filing on Schedule C, addressing common concerns about IRS scrutiny. Finally, they explore the complexities of structuring a 1031 exchange alongside a self-directed Solo 401(k), highlighting prohibited transaction rules, financing considerations, and strategies for staying compliant while maximizing tax benefits. Tune in for practical guidance on protecting your investments and making informed tax decisions.

Full transcript

1h 7m

Transcribed and scored by The B2B Podcast Index.

Speaker A: This is the Anderson Business Advisors podcast. The show for real estate investors, stock traders and business owners. We help you keep more of what you earn and protect what you've built. Let's get started.

Speaker B: Welcome in, everyone to Tax Tuesday. I'm, um, your host, Amanda Winalda.

Speaker A: This is Elliot Thomas, manager of Tax Advisors.

Speaker B: All right, and we're coming to you live from Studio210 in the lovely Las Vegas, Nevada. Why don't you guys, uh, tell us where you're from. Go ahead and use the chat to tell us where you're joining us from. Give everyone a few minutes to. Or a couple 30 seconds. You get 30 seconds to get in here before we get the fun party started. All right, we've got San Jose, California. Dallas. You were just in Dallas.

Speaker A: In Dallas, home of the Cowboys and the Mavericks.

Speaker B: Don't leave if you're not. Don't leave just because he said that. California. Calabasas. Fort Collins, Colorado, Wisconsin. Is that a good Wisconsin accent, Michelle? Let me know. Oh, Odessa, Florida. Corona, California. That's where I'm from. Maybe we know each other. Long Beach, Orange County. Bill's country. Sorry. Sorry, Elliot. All right. Columbus, Ohio. Well, welcome in, everyone. We've got a great show for you. Uh, this is Tax Tuesday. And if you've been here before, you know, we start with the rules because we're lawyers and we are into tax.

Speaker A: So rule based.

Speaker B: What else is there? Uh, we have a live Q A that feature in Zoom. So if you go down to the bottom and Q A, you can put in any question you like. So we've got a set of questions that we're going to, topics we're going to be talking about. But we also have a top notch team in the background including Patty Perry, uh, Harry, Harry, Rachel and Troy, who will be answering your questions in the background. Um, so keep them busy. Last week I was on live on YouTube and we only got one question. I was feeling very lonely. So keep, uh, keep those guys working. If you have a question you'd like us to feature on Tax Tuesday, you can go ahead and email that too. TaxTuesdayndersonadvisors.com Elliot goes through all these on a bi weekly basis. Yep, it was a little thin this week.

Speaker A: We got through them.

Speaker B: Delve into the archives. Uh, if you need a more detailed response, you can become a tax or a platinum client here at Anderson and we can get you set up with, uh, either Elliot or Rachel, Harry. They all do tax clients. Wow. Troy's being mean to me in the chat, guys. So Be mean to him on YouTube. Uh, this is designed to be fast, fun and educational. Uh, we love educating our clients. We love educating people about tax. It is one of the hardest parts of law. I would say even if you have, uh, an attorney or know an attorney, you get into that tax area and they just kind of back away, like keep it away from me. Uh, well, our questions, we start off with, uh. Why don't you start off on the first one, Elliot?

Speaker A: I work in a family owned company and have the opportunity at the end of this year to obtain equity slash ownership. They're going to come into the business. Would you recommend accepting that ownership under a specific tax strategy or corporate setup or just accepting the ownership under my personal name and Social Security number?

Speaker B: We actually get this quite a lot. We do question a lot.

Speaker A: Yes.

Speaker B: Next we're going to hit on is it a good idea to pull money from a traditional IRA early and then invest in oil funds to get IDC deductions to help offset the taxes I will incur by withdrawing from the Iraq.

Speaker A: Can documents be reviewed for previous years and if my previous preparer didn't use all the available strategies, can those strategies be applied for those years? Can we go back and amend is what we're.

Speaker B: That's essentially the question. Uh, all right. I will be relocate. Putting the wrong emphasis on the wrong syllable. My apologies. I will be relocating to South Africa with which has a tax treaty with the United States government. I'm a retiree who receives a monthly annuity. Will I be double taxed? I will be paying both federal and state taxes in the U.S. what is

Speaker A: the best tax strategy for sole proprietor ownership of 12 rentals?

Speaker B: That's. We're going to get into legal situations there as well. I have a 22 unit condo project that we converted into rentals in 1992. It was a C corp. Now it's an S corp. One advisor suggested converting to an llc. Would this trigger a taxable event for property tax reassessments? I guess I should switch the slide if you want to read the next one. There you go.

Speaker A: I have a detached ADU auxiliary dwelling unit in my backyard. I want to use it as a home office. Can I do that? And if so, how is the deduction calculated? Also, can I get a deduction if I use part of the of my garage for business? For storage? Get that question an awful lot.

Speaker B: We do.

Speaker A: We do.

Speaker B: Does a sub S selection with an accountable plan attract more attention than a schedule C filer? And we're talking about audit risk.

Speaker A: There we are completing a 1031 exchange and would like the guidance on the best way to structure the purchase for our replacement property. Our objective is to use all the available 1031 exchange proceeds from, while funding the remaining balance with assets from a self directed solo 401k, if permissible, and avoid obtaining a conventional mortgage. Are there any IRS rules, prohibitive transaction concerns or implications that we should be aware of before proceeding? Probably a little bit of all of those.

Speaker B: A little bit of all of those. We already got Eric in the chat saying it's perfect timing on the amended, uh, returns because he's got that exact situation, so you never know. Guys, gotta come in. Uh, this is one of our founding partners, Clint Coons. His YouTube channel. If you haven't subscribed, you know what to do. Uh, between him and our other founding partner, Toby Mathis. If you're here, you should know Toby, because we're on his channel right now. Between the two of them, did they just hit 1 million subscribers? Elliot?

Speaker A: I believe they did.

Speaker B: That's massive. They've got over 12, wait, 2,200 videos, uh, which is probably thousands and thousands of hours of tax and legal advice in terms of planning asset protection. So definitely subscribe there. You'll get a notification when we go live for Tax Tuesday. Uh, and you can join us. We've also got our next live event in Las Vegas. So we hold this three day event only a few times a year, so you really got to jump on it when, when we have them. The next one's October 1st through 3rd. With this QR code, 99 bucks. There is three days worth of free tax and legal information for $99. You can't beat that out anywhere. Ms. Patty has put those links into the chat if you want to grab them. You were just at the last one in Dallas.

Speaker A: Yeah, and it's, it's not just a great time to learn more or go over things, you know, that you maybe have forgotten. But, uh, it's really great for the clients to talk to each other. There's a lot of synergy that goes on. Clients get to hear about different situations that they were in for their investments. And so it's really just a, uh, uh, just a wonderful group of like, mind people just trying to learn more.

Speaker B: For sure, for sure. So come out and join us. It's a tax deductible trip, by the way. Uh, and if you can't make it out for a full three days, we have our one day tax and asset protection workshops. The next one's coming up Saturday, August 8th and then the following Saturday, August 15th. They're usually every Saturday and they're great jumping off point. So if this is your first taste of Anderson Advisors and what we do here, this one day event, it's online, we have quite a few clients who will come multiple times and then end up learning just a little bit more each time. The morning is asset protection, the afternoon is estate planning and tax. And then again here you can hit our three day event. If you've been to the events, if you know that you love it, if you know that you need it, uh, schedule a free strategy session. Here we have the QR code. Patty's gonna put the uh, link into the chat as well. This is a one on one, 45 minute session with a dedicated advisor. So if you have pretty much gotten all you can get by DIY and self educating you yourself, this is really the next step, Right?

Speaker A: Yep. And you know, we get to hear again, so many different points of view, um, when you get further into the system. But this strategy session is fantastic as a, as kind of pulling everything that you know together.

Speaker B: I love it. I've got someone in the chat says they've been following us since they were 16 years old. Wow. Which is awesome. And they're 30 now and looking to, I mean the earlier you start that education, that is one thing. I just, I've got six kids all different ages from 10 to 29. And we've been. These are things you just don't learn when you're in school. Right. And so 16, that's super impressive. So thanks for joining us, ma'. Am. All right, first question. I work in a family owned company and have the opportunity at the end of this year to obtain equity ownership. Would you recommend accepting that ownership under a specific tax strategy or corporate setup or just accepting the ownership under my name and Social Security number. So the first question we need an answer to is how is that family owned company actually set up?

Speaker A: Correct.

Speaker B: Because if it's an S Corp or limited and the answer's already set for

Speaker A: you, pretty much, yes.

Speaker B: Mhm. So if that family owned company is an S Corp, S corps are only allowed to be owned by individuals. You could hold the shares in your living trust. Uh, but the answer is pretty much there for you. Now if that family owned company is a partnership, it changes dramatically, right, Eliot?

Speaker A: It does. It gets a little bit more, uh, confusing. But as we start down that road again, the main, we'll call it the main. The family owned company is a partnership. You have two Choices. When you pick up that ownership, you can have what's called a capital interest, which just means that if you were to sell the company today, you would get an equal portion to your percentage of ownership of the value of the company. So in other words, if Amanda and I were to start a partnership and, um, let's say it was her business and it was worth 200,000, and then she automatically allows me a capital interest for 50% and we close it that day, I would get 50% or 100,000, and she would get 100,000. We'd split 50, 50. Whereas there's also the profits interest. And there I would just get, going forward from that day forward, uh, my percentage portion of any future, uh, profits or appreciation in the bill or the business. So I wouldn't have anything to do with her original 200,000.

Speaker B: And that pretty much goes to the partner's capital.

Speaker A: It does.

Speaker B: The basis in the partnership.

Speaker A: Yeah. On the capital interest. Correct. Now, the real catch is most people would, when they think about, well, I'm going to come on as a partner, they really think towards the capital interest of just joining. But again, in the Amanda situation, if she just gave me 50% of that value and I didn't have anything to offer, well, that's. She has to gift that to me, and there's. There's gift tax consequences there. Or alternatively, if I don't put anything in and it's just handled to me, it becomes ordinary income to me, and I'd be taxed at ordinary rates, subject to employment tax. Again, that's on the capital interest. Whereas the profits interest, I generally am not taxable at that moment when it's granted to me because it's everything going forward. So there's really no value in what I got at that moment other than a right to things going forward. So the code doesn't really tax us now within both of those. And indeed, also, if it was an S corporation, why don't we kind of set that aside? But if it was an S corporation and I was receiving the shares personally, or if it was a C corporation and I was receiving the shares personally, then we get into something called 83B election and what's going on there. We often talk about that with stock. We rarely ever. I haven't seen it too often when we talk about partnership, but it is certainly applicable. And the code is just saying that if I'm going to receive that capital interest and it's not vested, which means I can't transfer it right now, and there's Still a substantial, uh, chance of, uh, forfeiture, a risk of forfeiture. Well, then I don't have to pay any tax at that moment if it's not vested. But if it is vested again with the capital interest and I pay tax right away unless I make an 83B election, and that says that I'm going to take whatever the value is of my services that I'm giving, that why I'm getting my partnership interest, I'm going to go ahead and whatever the value of the fair market value of that is, I'm going to call it income right away at that moment. So in other words, with an example, let's just say that the interest I'm getting is worth $1,000. And if that's the case and I take the 83B election, I have 30 days from receiving it to make this election. It's a form you send in to the irs. Then I'll be taxed at ordinary rates on that thousand dollars. And then in time, let's say it goes up to 100,000 of value and I sell later on, that's just going to be capital gains. I don't have to pay any more than capital gains tax on that appreciation of 99,000. However, if I don't do that, don't make that election and it hasn't vested yet, that is my thousand dollars. And so in four years at vest or in four years, there's no substantial chance of forfeiture. Then all sudden, once they say it's vested, I'd have to pay tax on 100,000 at that moment. And it would be ordinary income subject to taxes, which can be really difficult to pay the tax on after all that appreciation. So most often what people do in this situation is they will go with the profits interest, understanding all the facts and circumstances, so they don't have to pay tax right now. And if it, uh, if they have the chance, then they will go ahead and do the 83B, pay the tax now on whatever the value is so that all the future growth is capital gains. And it is. There's a lot. There's no doubt that's pretty dense material. But the same thing applies again. If it's an S corporation, you're receiving stock shares, or indeed if it was a C corp and you're receiving shares there too, you can make that 83B election. Uh, typically if you're receiving this for your circumstances services, this is where the reason you're paying is for your sweat equity. And that's all the 83B territory. Now again, if it's not for services, if I'm just receiving out of the goodness of Amanda's heart, well then it's a gift and we have to worry about gift tax, you know, but we won't see that probably happen.

Speaker B: No, I'm not gifting you in my family owned business. Get out of here, Elliot. Got to marry my sister just right.

Speaker A: Well, that's the, that's the analysis one goes through when they're trying to join this. Now, looking at it a little bit more from an actual easier to grasp tax aspect, let's just say it's again, it's a partnership. You can receive that interest in a corporation like an S Corp. It would all flow through to your 1040 and you could do all the things that we talk about in the S corporation. So in other words, a family business is a partnership. It makes your portion of the income coming in is, let's say $100 that comes into your partnership and flows right to you. And you would still have the same rules as an S corp. You need to have a reasonable wage and then a distribution or K1, two forms of income out come out of the S Corp. But you'd be able to do things like the Accountable Plan reimbursements for maybe administrative office or mileage, things like that. Also you could do two ADA meetings to subtract against your $100. Get that money back to your tax free deduction to your S corporation. That means you have overall less income coming in. Also, if it's a partnership, you could do a C corporation. Same story, all of those things we talked about with the S Corporation as far as accountable plan and 280A. But you'd also have a medical reimbursement plan given you meet all the other requirements of that medical reimbursement plan. So there could be some options here. Um, or you could just do none of that and just receive it again as you mentioned, uh, through your Social Security number coming, uh, straight through as a disregarded or something of that nature.

Speaker B: Yeah, we definitely want to use an entity when possible. So if it's a partnership, we have LLC as an option. S Corp Corporation. The reason we want to hold those, that partnership interest in an additional entity is, is for that asset protection piece. Right. So if you are sued, we don't want you to directly own the partnership. We want to have an additional layer of ownership so that we have that asset protection. Um, if you have additional deductions available like Accountable Plan to ada. If you're Doing it through a corporation rather than an llc. And then really here, this is the tax consequences depending on what type of interest you're able to get. I think if you are taking uh, the capital interest, that 83B election is kind of a no brainer.

Speaker A: Yeah, it could be, but if it's already vested then we could have an issue. Um, but the point is behind all this you're going to want to sit down and talk to somebody, have an actual tax, ah, consultation to work through this. And again, we don't know how that family corporation's set up right now or company, we don't know that it is a corporation. But these are hopefully little things that, you know, if it fits one of those slots that you would be able to kind of look at and uh, ask the right questions or at least have an idea where it's going.

Speaker B: All right. Is it a good idea to pull money from a traditional IRA early and then invest in oil funds to get IDC deductions to help offset the taxes I will incur by withdrawing from the IRA? So early withdrawal is uh, 59 and a half and you not only will pay ordinary income tax on that withdrawal, but you also pay a, ah, 10% penalty for the early withdrawal. So uh, having a strategy to reduce taxes when you do withdraw from your IRA is important. Now the tr, the strategy here is investing in oil and gas. So how does that work? Because the idc, the intangible drilling costs a lot, those can result in 70 to 80% of a tax deduction based on the investment.

Speaker A: That's right, yeah. The idc, intangible drilling costs, as Amanda mentioned, we are talking oil and gas. And this is a unique type of investment. We call it a working interest. And that's unique to this oil and gas, uh, industry, uh, if you will, and that's where you receive it personally. You're going to be the personal investment. We're not talking about boxes and LLC or anything like that. You as an individual are going to, to be the one receiving this working interest investment. And what our questioner is asking about, what Amanda is referring to, is that with that type of investment, let's say you put 100,000 in usually anywhere it will depend on the investment, but anywhere from 70, 80 it could be more, could be a little bit less, will be immediately deducted as an intangible drilling cost. Intangible drilling costs are the cost of wages put in to start setting up the oil rig and things like that and all the basic structure and things like that. The things that are going in. It's not the physical, uh, parts themselves. Those are tangible, tangible assets, tangible drilling costs. Those will be subject to regular depreciation. And if it's bonus depreciation, well, it could be a chance that almost 100% of everything could be deducted. However, getting back to the IDC intangible drilling costs, that's quite a bit. And as a rule of thumb, when we're doing tax plan, we put somewhere between 70 and 80% usually. So immediate deduction. Again, again, if we put a 100,000 in. I did, I did. Just a quick calculation. Let's just say you're at the 37% tax bracket on your 1040, and you put 100% in, you'd pay 37% or, excuse me, $37,000 on that. And that's not even including the payment penalty, if that was on there. But let's just say it was $30,000 just as your regular tax, uh, liability. Well, if we get 70% immediate deduction, and we probably don't have any income coming in because they haven't struck oil yet or anything like that, you don't have any royalties typically coming in the first year, then you'd be looking at about 25,000, almost $26,000 in deduction at 70% and about, uh, just short of $30,000 at the 80%. So my point is, is that you would have most of that tax liability or a large part of it being deducted. So we'll get some of it, but it's not going to get all of it. And you may not have a problem with that. And that just comes down to opportunity costs and things like that. Again, as Amanda pointed out, there could be some penalties on top of that tax liability. So that all goes into our calculus. Is it a good idea? Well, that's really an investment decision. We couldn't really say. But what we can do is walk you through these tax consequences.

Speaker B: Yeah, and the investment. This is the kind of question that we see a lot, uh, where we can tell that you have something you want to get done and you've worked it out and you're asking us this end question, rather than taking a step back and saying, well, what is your goal here? Is your goal to somehow get into an oil and gas gas investment, and now you're looking for where to get those funds and you're thinking, hey, I'll get them from my ira, or are you looking for a way to invest your IRA funds? Uh, outside of the ira, oil and gas is great. But you can do another investment where you aren't necessarily waiting five years for profit, and you could do that within your IRA even. Uh, so there's a lot of other options there. Um, one thing, especially with retirement accounts, any time we're dealing with accessing funds in an ira, one option is always going to be to roll that over into a solo for 1k, and you can borrow up to $50,000 out of that solo for 1k. That's a, uh, loan to yourself, not a distribution. So there's not going to be any additional tax or a penalty there. But I'd really want to know, if I was doing a consult with this client, I'd really want to take a step back and say, what are you trying to. Trying to achieve? And then let's do an analysis of whether this is the best way to get into it. If you're trying to just get into oil and gas, uh, and this is the only funds you have to do that, then you at least know it's going to be less of a tax hit than it could be.

Speaker A: Correct.

Speaker B: All right. Can tax documents be reviewed for previous years? And if my previous preparer didn't use all of the available strategies, can those strategies be applied, Applied to those years? Yeah.

Speaker A: So, yes.

Speaker B: Next question. Just kidding.

Speaker A: Well, what we're looking at here, first of all, kind of what, are there some rules? There's gotta be. This is the irs. There must be in this tax code, must be some kind of rules to guide us here. And we can go back three years from the original file date or two years from when you actually paid the tax liability for that return in question, whichever is later. So it works in your favor in that regard. Now, with that in mind, if we're going to go back, let's say, three years ago to look at a return, to try and add some strategies. Well, what if the strategy you're thinking about is maybe taking an Augusta rule meeting, a 280Ameeting? Well, if you were never paid back three years ago by the business, well, then, no, you can't. You never incurred that expense at the corporate level. So, no, we couldn't take that deduction. Likewise with any other deduction. Or if it was on your 1040, same thing. If you never cut the check, if you never paid for the deduction? Well, no, we can't go back there. But if we missed it, oh, uh, we did incur that expense and we just forgot it. We see that a lot with depreciation all the time. Well, then, yeah, one could go Back and amend or you don't even have to amend. We could go back, we could do in the current year, we could catch up in the case of depreciation. But if it was a missed mileage deduction or something, then yes, we could go back and forth, amend and capture that. So it really depends on the type of strategy we're talking about. Is it a strategy where I had to cut a check from the business back then three years ago, or is it something. No, I incurred that expense and it just got left off the return.

Speaker B: Yeah, to me this is a little bit of a misnomer question because my previous preparer didn't use all the available strategies. Well, it's up to you to implement that strategy. Uh, because the, your preparer can't make a reimbursement or pay something that happened in your business previously. Now if your preparer just simply forgot to take all of the deductions that you, you are entitled to, then that's a different story. But a lot of strategies, you do have to implement them in the year that it's paid. And like Elliot said, if there's any type of money that's changing hands, like a tax free reimbursement, even if you spent money, or let's just take mileage for example, even if you drove those miles, you can deduct them from the business, but you're not going to be able to call it a reimbursement unless you actually paid yourself within those years. So we uh, can't amend three years back, get a potential refund, but we don't have a time machine. We can't make you go back and actually make those payments to yourself.

Speaker A: Exactly.

Speaker B: Uh, what you can actually amend six, seven years back. But if you can't get a refund, in what situations would you even be considering amending that far back without a refund? Like why change the tax return if it's not going to benefit you?

Speaker A: There's very few times I'd want to go back and amend if I didn't have to. Because you're opening the door for the irs, the clock starts again that they can look another three years after that. But let's say you had a rental property and it never got put on your 1040 from five, seven years ago or something like that. It may be that you, you might want to go back and amend and put that on there. You uh, wouldn't get a deduction. You're not going to get a benefit.

Speaker B: Yeah, you're not going to get that refund.

Speaker A: Right.

Speaker B: You do want to track it property.

Speaker A: Correct. Uh, but you would. You would get a deduction from years three to one year ago. You know those. If you had that, all the, the bookkeeping and things like that, which. Another. Just another reminder how critical the good bookkeeping is in this situation. Otherwise you wouldn't be able to really amend anything or substantiate it.

Speaker B: Oh, the, the work going into, uh, organizing everything to amend if you didn't have good bookkeeping is almost not worth the refund you would get in many cases.

Speaker A: Yeah.

Speaker B: I will be relocate. I did it again. I can't say that word. I will be relocating to South Africa, which has a tax treaty with the United States government. I'm a retiree who receives a monthly annuity. Will I be double taxed? I will be paying both federal and state taxes in the US and the number one question here is really, what kind of annuity do you have?

Speaker A: Yep, that, that. And what exactly is our tax status? I know we're relocating, but there's different concepts within the code and the tax treaties. Are you considered a resident yet of, um, say, South Africa, but still a U.S. tax, um, uh, person? Now, really with all this, I gotta preface right away you really need to deal with someone who works extensively in probably international, uh, tax here because it can get into the details.

Speaker B: Elliot's lawyer showing he's putting in the disclaimer.

Speaker A: Right. A great qualifier.

Speaker B: So we're tax illegal experts, but not your tax and legal expert.

Speaker A: It's been a bit. I have enough problems with the US Code, much less some other countries. But anyway, so with that in mind, you're going to want to know which you are again. Where is your residency? Clearly it, uh, sounds like it's going to be South Africa, but are you going to be a tax resident for tax purposes? And that may change, uh, the answer sometimes. And then, as Amanda pointed out, it can depend on what kind of annuity. What is this retirement we have coming in, for instance? Some would call that Social Security as an annual, a monthly payment kind of coming in an annuity type situation. Well, there, the treaty between the two countries was pretty clear that if you had been a US Resident and incurred all that, uh, that built, uh, up your Social Security over time and retired then, and you were receiving it from the US or vice versa. If there was some similar type of, of, uh, retirement payment from South Africa and you move to the US the respective countries get a tax that. So in other words, you have Social Security coming in from the US You've now moved to South Africa. You shouldn't be taxed on that, uh, by South Africa. The treaty seems to be pretty clear on that.

Speaker B: And that's going to be for like government sponsored retirement.

Speaker A: Not all, ah, retirement, all your state benefits and things like state meaning, uh, country. Not as we think the 50 states and these treaties, they always call it the state, not to be confused with the United States and all the 50, Alabama, Alaska, etc.

Speaker B: Name them all. Right, Alphabetical order, go.

Speaker A: But the Arizona. Anyway, um, we're going to have to look at, uh, the state being the country, that is. And now we get into, well, what if it's another type of annuity? Did you incur that annuity? Was it part why you were here in the United States becomes a factor and then moved over, uh, there. The US in this particular treaty, from my understanding, they threw in what's called a savings clause. And what that means is that the IRS in that situation, if it was paid for, earned really while you were a U.S. resident, that they can come in and claim that on the taxes, will they? That's where you need the expertise of that particular type of annuity to know how it's going to be handled. But just you want to be aware of that because if the savings clause comes into play, the US could tax you. Okay. And you're mentioning here, well, I know that the feds in the states in the US will be taxing. Well, if that's the situation, it could be also that if you became a tax resident, uh, citizen, basically a resident of south, uh, Africa, that they could tax it there too. And it may be that there's only so much of a tax credit that's given to avoid some double taxation. But you could get hit with some double taxation, uh, in that situation if it's what I'll call private annuity or something like that type of investment. So again, hopefully those will give you some, uh, guidelines of things to look at as you talk to somebody who does do this as a regular part of business, is familiar with South African taxes and tax treaties in the U.S. code. Uh, but these would be the things I believe that individual, he or she would be looking at.

Speaker B: Yeah. Remember, as a U.S. citizen, you're taxed on your worldwide income, so it doesn't quite matter where you physically are.

Speaker A: And actually one thing I learned in here is apparently South Africa does the same thing. They tax on the whole worldwide income. So you got two countries who like to grab it all. There could be a little bit of overlap where there's Some credit given for the other country's taxes. But you still an element that might get hit with double taxation.

Speaker B: Yep. Uh, can he change his state of residence to avoid state taxes?

Speaker A: No.

Speaker B: Probably at that point, state being us,

Speaker A: I think we're talking the 50 I think is what we're talking there. I don't believe so. If it was. Again, if the state feels like it was entitled to something now when it gets to retirement. That is an interesting question because a state cannot go after a retirement benefits if you've moved to another state. In other words, let's take us just within the US and you're in Arizona. You retire and then you move to Montana. Um, Arizona can't go after your retirement check after you've moved to Montana. It becomes Montana taxable income at that point if they have a tax for such. So I think that in that case

Speaker B: move to Vegas first.

Speaker A: Right.

Speaker B: Wherever you are. To Vegas, then to South Africa.

Speaker A: Yeah. So there you might have a play. Although again, I don't know on international, I certainly don't. If I don't know the federal government with the South African, I certainly wouldn't know the state consequences. But that might work to get you out of the state perhaps.

Speaker B: Yeah. International taxation is a highly specialized. So you do want to work with uh, someone who. An international tax law firm. Shameless plug for our YouTube channels. Here we go. Clint Coons, uh, one of our founding partners he found focuses a lot on real estate, asset protection. Almost a thousand videos here. Uh, he is our number one speaker, our prime speaker. I mean this guy has a fan

Speaker A: club a little bit.

Speaker B: Yeah. People come to our live events just to meet him. The amount of he's forgotten more already than what people, than what most people in this industry even know. So ah, great, great resource here. Subscribe to that channel and then also Toby Mathis. If you are watching Tax Tuesday live or even a recorded version these recorded, we put the recorded episodes about a week, a couple weeks after we go live. You'll uh, find that on Toby's channel here. And then this bright green thing live for our masterclass. That's our three day tax and asset protection event. If the broader generalized forums are not, you're past that point where you're learning, then you need to apply these strategies directly to your situation. That's what this strategy strategy session is for. It's 45 minutes, just you, one on one with an advisor, talking about your assets, your hopes, your goals, your dreams and putting it all together into a plan that not only protects you from Liability, but also is going to save you a ton of tax along the way. Heading into our next section, what is the best tax strategy for sole proprietor ownership of 12 rentals? And this is one of those questions that really highlights how uh, Anderson is the best of both worlds. Under one roof, this is us. We do under one roof. We're tax and asset protection under a single roof. For those of you who uh, have had to work with an attorney, they typically eventually tell you to go talk to your cpa, you run over to your cpa, your CPA tells you to run back to your law, to your attorney, and you're stuck in between two professionals trying to translate. And you don't really speak either language. That's where Anderson comes in. We do it all. Uh, the strategy from an asset. We'll start with asset protection for 12 rental properties. We're typically holding each rental in its own state specific llc. We want the idea is to separate out each asset so that when, not if. Because if you've been in the game long enough that you have 12 rentals, you've likely been sued. Maybe it's small this time, but the next one's gonna be bigger. Uh, you wanna separate out those assets so that if a lawsuit comes in, it's only ever attacking one llc. And then each of these are then disregarded to. We call it a Wyoming holding company. It's an LLC based in Wyoming. Wyoming's great. It's very inexpensive to set up and maintain a legal entity there. The state laws are very business friendly to small business owners and investors. And they have great charging order protection, which means that any personal creditor of yours can't reach into your LLC and take any assets or funds out of it. So from an asset protection standpoint, that's where we're looking. These red boxes will be state, uh, specific. Specific to where, uh, your property is located there. Now from a tax perspective, we typically

Speaker A: want to throw in maybe a management corporation. Why? So we can shift income so we can manage

Speaker B: our C Corp, uh, property management company. Now if you have your own separate third party property manager, that's okay, you can let them do your thing. This corporation would then be managing that property manager. So it's like little more of a asset management company in that respect. And what it's then doing is that allows you what we call an income shifting strategy. You're taking funds that if you, let's say the rent goes in to this llc, it flows through and then to you down here on the bottom shows up on your personal 1040. And you're paying normal income tax on that, uh, your normal deductions, all of that. Well, what this allows you to do is through a management company, that and a management agreement. We need a contract here. We need always to back up our strategies with documentation. Ah, we're able to shift an additional amount over to our corporation. Maybe that's 10%, maybe that's 20%. It depends on what this corporation is doing. And then now we have it in an entity which one has 21% flat tax. So if your personal tax rate is higher than 21%, well guess what, we've now shifted all that income over to an ah, entity that has a lower tax rate. So we're already saving money there. And then we're able to pull it out with some strategies. Eliot has already mentioned, uh, in a previous question. We have our accountable plan, which is basically our tax free reimbursement plan for mileage, for cell phone, for Internet, for home office type. We have our 280Ameetings, which is basically you renting out your home back to your company 14 times a year max, uh, as, and that's non taxable income to yourself. That's non taxable under IRS code 288. And then we also have our 105B medical reimbursement plan. So any out of pocket medical expense expenses, now you've shifted that income right back into your pocket. And all of that is tax free.

Speaker A: Exactly right.

Speaker B: Builds up over time. If you start, even if you start getting accumulating cash into your corporation, you can't quite even pull all of it out through these tax free deductions. Hey, well guess what? Now we're going to set up a solo 401k. You're going to pay yourself a small salary and now you can build up an additional retirement plan there.

Speaker A: And if we have heavy, heavy amounts coming in, you could even do a defined benefit plan, which just think of a solo 401k only it's, you know, two, three times as much money you can put into it.

Speaker B: On steroids. Yes, they say yes. So that's the tax and the legal protection strategy for our sole proprietor ownership. Uh, and this is going to protect you because even if you are self managing, if you're self managing, then this contract would be a lease agreement. Uh, and that's going to give you an additional protection for any errors and omissions that you're doing as the property manager. And this, it seems more com. There's a lot more boxes. Right. But the corporation is just doing what you've always done. But instead of doing it as yourself, as an individual, you put on your C corp property manager hat and you are doing the exact same thing. So once it's set up, once you've got everything set, your bank accounts, your contracts in place, your day to day changes, almost not at all. Almost not at all.

Speaker A: It just carries on. Um, each year in that in and out, you got that asset protection. And the tax savings again it's the same each year. You're going to have to provide the same deductions and things like that. But it recurs over and over is my point. So if this saved you maybe $30,000 or got you 3,000 reimbursement and the tax savings, well that's going to repeat next year and the year thereafter and so on and so forth. So in a very short amount of time it will really have um, created a big difference.

Speaker B: That's right. Every dollar you get to keep from Uncle Sam dollar more towards building wealth.

Speaker A: Yes.

Speaker B: I have a 22 unit condo project that we converted into rentals. In 1992 it was a C corp, now it's an S corp. One advisor suggested converting to an llc. Would this trigger a taxable event for property tax assessments?

Speaker A: Now as a general, I went with the assumption because I, I changed this question just a little bit to shorten condense it a little bit. I believe the original question said it was in California, even if it wasn't. California typically is, is kind of strict in people picky on this type of thing. But even in California they generally have a rule that if you're not changing ownership percentages and it's really just going to be the same, uh, the, the same entity type structure going on here, then there isn't anything to trigger as long as there's something else that's not going on. Strictly the idea of going from an S corp, I'm assuming we're going to go into an LLC tax as an S corp, same tax, uh, form format and things of that nature, then generally that shouldn't trigger any property tax, uh, reassessment. And that would uh, in time, Amanda? I think that maybe that would probably be. In most states. You think?

Speaker B: Yeah, in most states property taxes are reassessed for fair market value annually. So changing ownership, uh, moving it into an llc, moving it out is uh, it doesn't change the reassessment schedule. Some states they maybe do it every other year, every fourth year, uh, but it's based, they're doing it regularly this is sort of a uniquely California issue because California under Prop 19 property taxes aren't reassessed every year. Uh they, the big changes in ownership uh, based on value happen when the big reassessments happen when there's a change of ownership or a change of control. So what people will do is put a property into an LLC and and then change the ownership of that LLC over time. Now does the county know that the ownership of that property has changed? Well no, because you're not recording another deed. Uh the ownership is changing at the entity level and the property is being reassessed at the county level. So there's a disconnect there. Even in California though, if you change ownership 51% you are obligated to then inform the county that the control of that corporation and thus the control of that entity and that property has changed and they'll reassess at that point. A lot of people think they found kind of a loophole where the county won't know that the ownership has changed. And uh, the reporting onus is still on you as the, as the essentially the beneficial owner this situation. I don't see any facts that indicate that the owners of the company are changing just the type of entity or really the taxation of that entity. Um, I'm, I honestly asked why they would even do this. It seems I mean doing a conversion isn't a lot of work there. You've got to file with the state. I mean if you've, your corp has bylawed and you're going to an LLC now you've got to draft an operating agreement. But if it's an LLC tax as an S corp if you're not changing the taxation of the entity I don't really see a reason to really do this at all.

Speaker A: It may just be that the operating agreement needs uh, to be updated from what you had for the uh under I assume this was a tree a true, what I call a true corporation. Uh maybe you'd be better off something provisions that what the operating agreement might have. So I could understand that. Now one thing I didn't even catch uh because that wasn't the call the question they're talking about property tax assessment. But we did go from a, a C to an S and that is always a concern for the built in gain tax. If we've done this with it we went from a C to an S within five years. Um and you know I just went with the idea that it's going to be an LLC tax as an S. But what if it's not. What if it's a disregard or it's a partnership? Well then you have a dissolution of that corporate status. And if you did it within five years of being a C corporation, you're going to get hammered with taxes called built in gain tax. Because if you remember a C corp tax has double taxation once at the corporate level, once as a dividend to the shareholders. The government knows when you move over to an S you don't have that. Second, there's just one round of tax. It might be W2, it might be K1, but it all flows through as taxed on the individual's shareholder's tax return. And they know that there's no taxable dividend in that situation. So they say if you make an election to go from a C to an S and within five years you start selling or dissolving or something like that, then you might have to work in for the built in gains. But here, um, you know, if it became a dissolution, that could be an issue potentially it's really contemplated when you're selling, but I don't know about if it's. If it was an S corporation that we're changing to a disregard LLC or a partnership LLC that might come in employee as well. I have to look at that issue.

Speaker B: Yeah, so property taxes probably not an issue for you as long as the ownership's changing. If you are going to a disregarded or a partnership llc there's going to be tax issues there. Uh, but if there, if this advisor's telling you go to from an S corp, a true corp to an LLC taxes an S corp, I don't really see the point of doing that. There's a misconception that uh, corporations are harder to manage. Uh, because you're required to do one meeting a year, a director meeting and a shareholder meeting which usually happen at the same time. Whereas LLCs, you don't have any legal requirement to hold an annual meeting. That being said, your annual meeting, you could be having it right now, right? Uh, they're very easy to have, they're very easy to document. And the more you do them, the, the more real you're showing a potential in a potential lawsuit, uh, you're showing a court, hey, I've been operating this business as a true business, not just as an alter ego of myself. So even for our clients who run llc, we recommend a minimum of that one, one meeting a year, which is what's already required in a corporation. I actually prefer doing one a quarter even if that meeting is. We had the meeting, no new business, you document it. And when you eventually get sued, do you want to walk into court with a 10 page operating agreement and no meetings covering the last year or do you want to walk in with a stack of documents that big that show that you meant business?

Speaker A: So very good point.

Speaker B: I have a detached ADU in my backyard. I want to use it as a home office. Can I do that? And if so, how is the deduction calculated? Also can I get a deduction if I use part of my garage for the business, for the business, for storage? And I was like, why would it matter if it's detached or it's not? And LA said actually that is the key point in this question. That it does matter. That is what matters is whether it's attached to your home or whether it's not.

Speaker A: Yeah, I'll take the easy part first. What if it, as far as the office and um, you know, if you're using it as an office and it's detached, then the code says that's okay. But you have to use that detached area, the adu, the auxiliary dwelling unit, exclusively and regularly as uh, the. In the business.

Speaker B: If it's detached, don't mind me, I can't spell today. Can't speak or spell.

Speaker A: But if it's. Yeah. So if it's not part of the house, we have to use that area again, uh, exclusively and regularly. So you have a building, a shack sitting out in your backyard or something like that. We're talking about that situation exclusively and

Speaker B: regularly for the business, correct?

Speaker A: Not just exactly. Now, uh, let's just say that that building is 400 square feet and the house is 2,000 square feet. To get the calculation, you're just going to take the 400 square footage of the ADU and divide it by a total of 2,400 square feet. 400 plus 2,000 for the house. And that's where we would get approximately 16.7% approximately.

Speaker B: You don't get to use approximately if you're using a decimal point.

Speaker A: 6, 6.66667, uh, 9 I think is what it is. But that's what we're getting in. You know, as far as our calculation. Now there's to be sure, there's other little rules, you know, you can only, maybe only use the usable area, uh, for the, the 2400 which would mean you take away restrooms, hallways and stairwells. But just to get through this idea of the detached, that's how we would handle it. Now if we go ahead and this is what we call a home office. You know, it's a little bit of a difference if it's in the. Let's say you're using your garage maybe as a home office. We. If it's an administrative use of home, which means this is a corporation, you're an employee, and you're getting reimbursed under accountable plan, then you can go ahead and it's really the same story. You use that area of the garage exclusively regularly for the business. You can get reimbursed if our office happens to be there. And that's fine as long as you differentiate. If there's any part where you're maybe parking your car or something like that, uh, if this is. If it's attached again, uh, then you'll typically be okay. But if it's administrative office, that means that you must have some other office. So this is where you do your administrative work. I used a bad example of a pharmacy. But let's.

Speaker B: His example, guys, was what if you were a pharmacist, you have your pharmacy, and then you're doing your work in your administrative office at home. And I said, okay, Walter White, that's not a great example.

Speaker A: The idea is that you'd be doing your administrative work in your garage or something like that, if it's attached, and then you'd be driving during the day to some other office, in which case actually you get the reimbursement on the mileage too. But that's neither here nor there. Um, and that's kind of how we handle that. Now, what if it wasn't an administrative office? What if it was a home office? Which means we're probably talking about sole proprietorship. Schedule C then, uh, if it's attached, this office area, if it's going to be a home office, must be used as the principal place of business. Okay? And that's, uh, you know, a lot of. A lot of detail there. But again, that's home office where we're Schedule C Now, all of that, let's change it up and let's say now we're using it as storage. You talked about using the garage as storage. Same story. As far as if it's an ADU detached or something like that, we get the same rule. As long as you're using it exclusively regularly, uh, then you should be okay if it's part of the administrative type office situation. However, if it's home office, then you can only use it if it's being, um, as a principal place of business and you're storing it there. And you don't have another place that you could store it. So just these minute little details can kind of change the answer. But no matter what, you have to be very careful to make sure that area is being used properly as either the office or storage.

Speaker B: What? Exclusively and regularly means you're really not using it for anything else.

Speaker A: Uh, exactly. You really can't use it as a game room also for your kids or something like that. Or a place where, uh, you know,

Speaker B: your mother in law can't live there.

Speaker A: Right, exactly. No one's staying there, uh, who's visiting or anything like that.

Speaker B: Could you. If you lived on a large property and you're attached, your detached unit was miles away from your main house, do you get to deduct the mileage driving there and back like on your little golf cart? Uh, on your little gator?

Speaker A: I. I'm gonna say probably yes, but I don't know. Actually.

Speaker B: Ellie doesn't like when I just come up with questions. He doesn't.

Speaker A: Well, you know, I don't actually. I don't think you can do mileage on a golf cart. Yeah, you'd have to be. It's for.

Speaker B: It's a bicycle.

Speaker A: No, it has to be a car. So let's just say it is a car.

Speaker B: So you got to get.

Speaker A: I would argue that. Yeah, I would put it down on the return. I would feel like I could defend that. I would too. Well, you know what? You're leaving home. If you don't have an office in your home, then no, it's a commute to the ADU unit. So no, you couldn't deduct it because

Speaker B: it's on your property.

Speaker A: Yeah, because the house. You didn't have a business purpose for being in your house. It's just your home.

Speaker B: Hm.

Speaker A: You'd have to have an administrative office there too, and then another one over there in order to be able to deduct a mileage and get reimbursed. So no, you couldn't.

Speaker B: There you go, guys. You saw it happen in real time. You saw it happen in real time. All the gears turning in real time. Does a sub s election with an accountable plan attract m more attention than a C filer? Well, yeah, they're sexier. They attract more attention out there in the main streets.

Speaker A: Uh, the tax world. Yes, it's.

Speaker B: Well, the attention, we're assuming you mean is the bad kind of attention. Uh, the audit attention.

Speaker A: Yeah. Well, first of all, an S corporation versus a schedule C we talk about all the time. There's varying various stats out There, but anywhere having a Schedule C is anywhere from 400 to 1000% more likely to get audited than an S Corp. We

Speaker B: don't like those aunts.

Speaker A: Yeah, that's really bad. Okay, so that's whether there's an accountable plan or not. Okay, so just right there is all the reason I'd want to do an S election and get it off my personal return, because there's less chance the IRS is going to look at it now, specifically to the accountable plan, which, incidentally, you could only do with an S corp because it's only for employees and you're not an employee of your sole proprietorship. No matter how hard you try, you're not here, you're not allowed to have an accountable plan. So there's nothing out there to say that an accountable plan would, would do anything to risk. There's never been anything, uh, to show because it's just a reimbursement. It's office expense. It's, um, it's mileage reimbursement. There's nothing there that would completely normal

Speaker B: expenses for a business to take. Right, Exactly. Whereas the Schedule C, the IRS knows that people abuse it. And I, I use this example all the time until I ran across somebody who, uh, actually did this, and I'm still going to use it. It's like if you sign up for an MLM to sell essential oils so that you could write off lunch with your friends every week, the IRS knows that people abuse the Schedule C for that. Uh, the person, the client that did that was making like 90 grand selling essential oils a year. So probably flies legitimate, uh, business there. But that's why that 400% to 1000% more attention is on that Schedule C. Even if it's the same exact deductions. Right. And on top of that, those same deductions, there's limits to them on the Schedule C. The home office we just talked about, for example.

Speaker A: Yeah. If you want to do the, um, uh, the safe harbor, it's, it's $1,500 is the most you're going to have on there on a Schedule C. I think also that they know the complexity, and if they see someone's doing their own tax return, they know there's complexity in the code just inherent in it. So if they see a Schedule C, they know there's more than likely errors. And in fact, there were statistics back when the IRS used to publish that. Let's just say there is an audit on an S, and you compare it to an audit on Schedule C. Not only you're more likely to get audited on the Schedule C, but the amount you're going to end up paying after it's all done is significant.

Speaker B: You're more likely to lose that audit as well.

Speaker A: Yeah, uh, for sure. So, lot of bad with the Schedule

Speaker B: C. The best selection with the accountable plan, anything you. Most of the time we're trying to move things off that Schedule C. Right. We are completing a 1031 exchange and would like guidance on the best way to structure the purchase of our replacement property. They're using the right terminology. So this is someone who has already looked into this. This. Our objective is to use all available 1031 exchange proceeds while funding the remaining balance with assets from a self directed solo 401k if permissible, and avoid obtaining a conventional mortgage. Are there any IRS rules, prohibited transaction concerns or tax implications we should be aware of before proceeding? So let's talk about a 1031 exchange. Just the basics. We don't need to get deep into what that is. Uh, but why you would be doing that?

Speaker A: Excuse me. So we're talking about real property. It was used in a trader business such as a rental. We're not talking about flipping property where it's inventory and you're selling it and you want to defer the tax. If you sell it, you must use those funds to pick up what we call the replacement property, a new property that must be used in a trader business. In other words, again, it can't be for flipping. It's got to be a rental or something of that nature. And real simplistically, if the property you're picking up, the replacement property of its fair market value is equal or greater than the fair market value of the property you sold, and if the amount of debt you picked up on that replacement property is equal or more than the property you got rid of, the relinquished property, then generally speaking you're going to have deferral of all the tax gain, all uh, your whole gain on the sell. That original property will be deferred into the new property. We call it carryover basis will be a function of it. So that's why people like the 1031, it pushes kicks the can down the road. And if you should later on pass and leave it to your heirs, they get stepped up basis. So that's why we really, really like the 1031 as a tax strategy.

Speaker B: Now the key there though is the same taxpayer, right?

Speaker A: So if you relinquish the property in your ABC partnership, it must be ABC Partnership, that's picking up the new property. Okay. And in fact that's probably a bad example given where this question's going. So let's say it was your sole proprietorship, it was a LLC disregarded to you and you relinquished a property, you must pick it up in that LLC or at least an LLC that's disregarded to still hit your 1040 because it's really the same taxpayer, not always necessarily the same entity. However on closing the title companies may make you make it the same LLC,

Speaker B: but in this situation we're adding in that solo 4 um, hundred 1K. So now we don't have the same taxpayer.

Speaker A: We don't. Right. And here when you have two or more members because you're going to want to have this asset protected, that's going to be a partnership. And that is a definite no no on the tax code. Meaning on our right hand side. I believe that's our right hand side of there. I don't think it's the left to them. But there that is a partnership. Whereas we gave it up. It was not clearly not the same same entity that gave up the property. So right there we fail on the tax code section. And you know that's, that's gonna be a problem. Now then on the solo 401k section, boy howdy, there are tons of rules about not uh, having any self benefit from, from transactions having to do with your retirement plan. And so it very well might be that you could run afoul. You have to be, be very, very careful. Is it possible at all to come up with some scenario where maybe you could do this? Well, maybe going if you purchase a Property but a 1031? I don't think so because we can't get around the IRS rule.

Speaker B: Same taxpayer, not 1031. But if you wanted to partner with your solo 401k to purchase a property, you could do that. It's very tricky and easy to mess up. So we try to dissuade uh, clients from doing it. Unless they're fairly sophisticated. Uh, you can one time partner with your Solo 401K. And what does that mean? That means that it's one cash infusion. Right? You cannot add money along the way. You gotta overestimate the amount of money to take from your 401k and put into this new partnership situation. You can't go back to your retirement account and keep pulling funds out. So if there's a major repair, the roof blows. You're not allowed to add more money to that and you also cannot self manage you are not allowed, uh, to even pick up a hammer in terms of. Because that would be you personally providing some benefit to your retirement plan. And that's a big no. No. That was what falls into this prohibited transaction category and could potentially disqualify the those funds in that retirement account. So Outside of a 1031, can you partner with your 401k? Yes, but it is very tricky. You wanna, um, make sure you're not crossing over into that prohibited transaction situation. What other options do they have? Did you have something to add to that part?

Speaker A: No, no. You had mentioned also when we were kind of looking over this or that. Well, if we do have that solo.

Speaker B: Uh-huh.

Speaker A: You're allowed to take a loan. And that might help with our situation. You can take a loan up to 50,000 out of the solo and you can spend that on whatever you want, want. So maybe it's not enough here to cover all the bills that you need, but at least it's a portion of it. And if you need more funding, well, then you probably have to do a distribution from the Solo 401K. And yes, we will pay tax.

Speaker B: And the thing is, is that this person's asking if they can essentially partner with their 401k and avoid obtaining a conventional mortgage. Well, the original rule of that 1031 is that the amount of debt you take on has to be equal to or greater value. So either this property is fully paid off and there's no debt whatsoever on it. Uh, because if there is, then you still need to have debt attached, uh, to that replacement property.

Speaker A: And the lack of that debt is what we call boot. So you're going to pay tax then?

Speaker B: Yeah.

Speaker A: And so, uh, yeah, a lot of little holes in this scenario.

Speaker B: So partnering with the Solo 401k is not going to work. Uh, it's probably going to. Your best bet to effectuate the 1031 is going to be to obtain that conventional mortgage. Doesn't have to be a ton. Uh, if you only need that 50 grand, you can borrow from your solo 401k. If you and your spouse, if you have a spouse and they have a 401k, they could borrow 50 from theirs. Um, or forego the 1031 completely and partner with your solo 401k, um, to buy new property, but not 1031, which is probably not the best from a tax standpoint.

Speaker A: And if you are getting into 1031, just going back to the basics of it, make sure you're always doing, you're required to deal with work with a qualified intermediary. That's just a third party. They receive the funds from the cell. They're the ones who spend the funds on your replacement property. You don't want to touch any money whatsoever.

Speaker B: I can't tell you how many times a client has come, a new client has come and said, well, I did a 1031 on this property. And they, they're like, I sold this property. Can I do a 1031? It can't happen. It needs to be happening. You need to talk to that qualified intermediary. That transaction needs to be set up as a 1031 exchange from the outset. It's not something that you can just go back and reclassify a normal sale as Clint Coons. Uh, also known as the Ken of asset protection. Ken does asset protection just like he does Beach. No, Clint is one of the foremost experts in this industry. He is a great speaker. He's at all of our live events. Um, subscribe to his YouTube channel. Almost a thousand videos, which translates into hours and hours of free information. Can't get a better bargain than that. And also, Toby Mathis is our other founding partner, our fearless leader. Uh, you get, you get skinny Toby and post COVID 19 Toby in the Little circle. Yeah, we all had it. We all got it. Don't scroll back far to see my old videos, that's for sure. Uh, together, over a million subscribers. So congratulations to them. Such a great accomplishment. If you'd like to join us at a live event. This is our three day tax and asset protection event. 99 bucks, I gotta say, for three days of what? You just got here, in one hour, your brain explodes. If you want to pay $99 to have your brain explode with information, this is where you're going to do it. You can use the code Tax Tuesday. Elliot, you're going to be there. I might swing by. It's local.

Speaker A: I haven't heard where it's at yet. I'm not sure.

Speaker B: Well, it's in Las Vegas. Well, it's in Vegas.

Speaker A: Yeah, but what, what hotel?

Speaker B: Yeah, we're not. Yeah, we'll. We'll let that. Who cares?

Speaker A: Yeah, it's Vegas.

Speaker B: It doesn't matter. You can't talk about it later. Regardless. So, uh, come and join us. Or if you're ready to sit down and start this process, to work one on one, you've passed the free education point. You're past the diy. Uh, sit down with one of our advisors. You get this free strategy session. 45 minutes of just talking one on one with someone like Elliot, um, or our business advisors. All for free. So links in the chat circa Ms. Patty said circa. Circa's cool.

Speaker A: Very nice.

Speaker B: And you know why I think Circa is cool? Because no kids are allowed. That's why I personally think it's cool. Uh, if you have a question you'd like feature on Tax Tuesday, please email us at taxtuesdayndersonadvisors.com or visit us at andersonadvisors.com thank you all again for joining us and we will see you in a couple weeks. Take care.

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