New York & New Jersey Business Lawyer Blog

Lawmakers often use state and federal tax laws to encourage certain types of business activity, or to discourage activities in lieu of banning them. Tax breaks often serve as incentives to investors and entrepreneurs to focus on a particular industry or market. Bills pending in the U.S. Congress and the New Jersey Legislature propose various tax incentives for businesses, including technology investments, infrastructure development, and hurricane relief. Supporters of these bills hope to promote job creation by spurring business activity. Critics contend, however, that similar New Jersey incentives have not had the desired impact on job creation in the past. New Jersey and New York businesses should be aware of pending legislation in order to take advantage of any tax breaks or tax incentives that might benefit them.

On April 9, 2013, a Democratic lawmaker from Maryland introduced H.R. 1415, the Innovative Technologies Investment Incentive Act of 2013 (ITIIA), in the U.S. House of Representatives. The bill would allow a tax credit for qualified investments in "high technology and biotechnology business concerns," H.R. 1415 § 2 (113th Cong.), equal to twenty-five percent of the investment amount. This would be a direct credit against the amount of tax owed by the investor, as opposed to a deduction from the investor's total taxable income. The total amount of the credit would be subject to a nationwide limit of $500 million per year, and the Small Business Administration (SBA) would be responsible for allocating credits among qualified investors. To qualify for the credit, the investment must be a stock purchase or other capital investment in a high-tech or biotechnology business with less than five hundred employees. Investors must hold onto their investments for at least three years. The purpose of the bill is to encourage investment in technology and biotechnology companies, which in turn will hopefully promote innovation and job creation.

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Just as new businesses start every day, some businesses must cease activities, wind up their affairs, and dissolve. This can occur for any number of reasons, including bankruptcy or the decision of the owners to stop doing business. Any New Jersey business that must wind up and dissolve must follow procedures established by state law, which include notification of creditors, payment of debts, and disposition of other assets.

Reasons for Winding Up a New Jersey Business

Businesses may wind up voluntarily or involuntarily. An involuntary dissolution usually results from bankruptcy or a court order in some other legal matter. A court-appointed trustee may handle the dissolution of a business in a Chapter 7 or Chapter 11 bankruptcy case, but in other situations, the management of a business must handle the winding up process itself. Court-ordered dissolutions in non-bankruptcy cases are rare, but might occur in a dispute between partners in a joint venture or some other single- or limited-purpose business entity.

Shareholder or partnership agreements may include provisions for mandatory dissolution if certain events occur. Voluntary dissolution usually results from a decision by the business' owners, made according to the procedures established in a shareholder agreement, partnership agreement, or other management agreement.

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The New Jersey Legislature passed sweeping reforms of the laws governing limited liability companies (LLC) in September 2012. The changes to the Limited Liability Company Act will take effect in March 2013, affecting newly-formed companies immediately. LLCs already in existence will continue to be governed by current LLC law until March 2014, when the new law becomes applicable to all LLCs in the state. The new law represents a major departure from current law, which is based on Delaware's LLC laws. The Revised Uniform Limited Liability Company Act (RULLCA) forms the basis for the new law.

The new law began in the Assembly as AB 1542, where the RULLCA was introduced in January 2012. The Assembly passed it on May 24, 2012 by a vote of 77 to 1. The Senate passed a counterpart, SB 742, on June 21, 38 to 0. The Governor signed it into law as P.L. 2012 on September 19.

The RULLCA is the work of the National Conference of Commissioners on Uniform State Laws, commonly known as the Uniform Law Commission (ULC). The ULC prepares model statutes for a variety of purposes and proposes them to state legislatures in an effort to develop a standardized set of laws. It first developed the RULLCA in 1996, when LLCs were still a relatively new idea, and modified it in 2006. The New Jersey law is largely based on the 2006 version.

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A New Jersey organization representing more than one thousand small business owners rallied outside the Statehouse in Trenton recently to advocate for a state health insurance exchange (HIX). The Legislature passed a bill that would have created a New Jersey HIX in early 2012. Governor Chris Christie vetoed the bill in May, citing the pending decision from the U.S. Supreme Court regarding the constitutionality of the Affordable Care Act (ACA), commonly known as "Obamacare." Governor Christie stated that, until the Supreme Court ruled on the ACA, the New Jersey law's constitutionality was similarly up in the air. Since the Supreme Court upheld most of the ACA in June, many small business leaders want him to approve a HIX for the state.

The ACA requires states to create HIXs in order to assist people in obtaining health insurance coverage for the themselves or their families. States have until November 16, 2012 to enact their own state-run HIXs. After that date, the federal government will operate the HIX for the state. So far, eleven state legislatures have created HIXs, and three governors have created them by executive order.

Consumers and small businesses can use HIXs to compare and contrast private health insurance plans, and to learn about tax credits and other benefits. The federal government has made grants available to the states to facilitate the establishment of HIXs. According to the U.S. Department of Health and Human Services (HHS), New Jersey has received two grants: a $1 million "State Planning Grant" in 2010 and a $7.6 million "Level One Grant" in 2011. State HIXs are expected to go online, sometimes literally, in 2014, when many of the provisions of the ACA take effect.

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A decision from the New York Tax Appeals Tribunal illustrates the importance of clearly and carefully documenting business transactions, even when those transactions are between family members. The case, Matter of Ultimat Security, Inc., involved an attempt by the New York Division of Taxation (DOT) to hold a company liable for sales tax owed by the company whose assets it acquired. The original business and its successor were owned by a son and his mother, respectively, and they contended that the asset transfer was not a "bulk sale" subject to tax liability. The courts disagreed and held the successor business liable for the full tax bill.

From November 2000 to May 2007, Tim Butler owned and operated Ultimate Security, Inc., a Hempstead-based provider of residential and commercial security guard services. The company employed Butler's mother, Vera Drayton, as an office administrator. Drayton reportedly wanted to start her own business, and Butler approached her about taking over his company. Drayton created a new business entity, Ultimat Security, Inc. During May 2007, Ultimate Security transferred its business assets, which consisted of a customer list, office equipment, equipment for security guards, and other personal property, to Ultimat Security. Neither the two companies nor Butler and Drayton signed a sales contract, nor did any consideration change hands.

New York state law requires the purchaser in a "bulk sale" of assets to file a notification with the DOT, which Ultimat did not do. The DOT requested information about the bulk sale from Ultimat in December 2007, and received a reply denying that the transfer of asset constituted a bulk sale. In January 2008, the DOT notified Ultimat of a possible claim for sales taxes owed by Ultimate. The DOT concluded that the transfer was a bulk sale because of, among other factors, the relationship between Butler and Drayton, the commonality of the companies' customer and employee lists, the similarity of the company names, and the lack of documentation filed by Ultimat upon the commencement of its business operations. The agency issued a Notice of Determination that February holding Ultimat liable for tax assessments against Ultimate, totaling almost $350,000.

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Startup businesses in New York and New Jersey always begin with enthusiasm and excitement. A new business is an opportunity to create and explore, but also requires careful planning and attention. Certain risks, if not managed effectively, can sink a new business before it has a chance to succeed. Here are five errors that new businesses often make, and tips on how to avoid them.

1. The Wrong Business Entity. Identifying the right type of business organization is critical to a company's success. Owners must consider how they want business income to be taxed, and how they want to handle the liabilities of the business. Corporations, limited liability companies (LLCs), and partnerships each offer unique advantages. "C" corporations and "S" corporations offer similar liability protections, but different tax advantages. Partnerships offer tax benefits in some circumstances, as well as flexibility in the company's governance. LLCs offer a great deal of flexibility, but may not be right for fast-growing companies.

2. Insufficient Planning and Agreement Among Owners. Business owners must consider not only how to start their business, but also how they plan to either end or exit it. They must plan for contingencies, like the early departure or death of an owner, with regard to how the company will handle that owner's equity share. Any promises or contingent offers regarding additional stock or equity should be in writing. Agreement among owners at the start of the business is no guarantee of continued harmony.

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A proposal from the Obama administration to reduce the federal corporate tax rate has not generated as much enthusiasm among small business owners as might be expected. Small business advocates claim that the proposed reduction, while seemingly beneficial at first glance, would actually only help a small percentage of companies. The proposed reduction would lower the top corporate tax rate from thirty-five to twenty-eight percent. For manufacturers, the rate would top out at twenty-five percent. The problem is that the proposed reduction only applies to C corporations, the corporate structure used by most large businesses and very few small ones.

According to the Associated Press, only twenty-five percent of small businesses use the C corporation structure. Other small businesses are organized as S corporations, limited liability companies (LLC's), partnerships, or sole proprietorships. The primary difference between a C corporation and a S corporation is the way in which they pay taxes. C corporations pay federal income taxes on net revenues, and shareholders pay taxes on dividends received from the corporation. This is sometimes known as "double taxation," since the corporation and the shareholders both pay income tax on what is essentially the same money. In a S corporation, income "passes through" to the shareholders, who pay the income tax. Tax laws set specific restrictions on who can be a shareholder in a S corporation, and the total number of shareholders is capped.

Other types of businesses, like LLC's and partnerships, also usually do "pass-through" taxation, although they may sometimes opt to pay tax like a C Corporation. Sole proprietorships are typically just a legal alter ego for the business owner, so taxes are paid through the individual's tax return. According to the National Small Business Association, up to eighty-three percent of small businesses pay taxes at the level of the owner's personal income.

While larger corporations may see a reduction in their taxes, small businesses may not see any change, or may even see an increase in some circumstances. The Wall Street Journal reports that people with total income of more than $250,000 per year will see an increase in their personal tax rates if the Bush tax cuts expire on schedule at the end of 2012. This would have the effect of raising the tax rate on small businesses whose taxes are tied to their owners. Several small business advocates quoted by the Wall Street Journal promote reducing the personal income tax rate along with the corporate rate in order to more effectively help small businesses and the self-employed.

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The Wage Theft Prevention Act (WTPA), which passed the New York Legislature in 2010 and took effect in April 2011, requires New York employers to provide annual notices to their employees detailing their total wages and providing the identifying information of the employer. The WTPA is intended to help workers assert their rights by ensuring they have all the information they would need to make a wage claim if they believe their employer has violated New York labor laws. It applies to all private sector employers, regardless of size. The WTPA has generated controversy among business owners, and has even led some of its original sponsors to say it should be modified.

The law requires extensive reporting of wage amounts, withholding of income and payroll taxes, and other benefits for every employee. For many small businesses, this can be quite an onerous task. Some business leaders quoted by Buffalo's WGRZ News describe the law as "government overstepping its bounds and being a problem for the private sector." Some state legislators already have plans to try to repeal all or part of the law. One state senator noted that the information required by the law is available to the Department of Labor on demand already if they initiate an investigation of an employer.

The WTPA requires employers to keep reports on file for six years. It also requires employers to provide notices to employees in the employee's "primary language." The Department of Labor has produced template forms in Chinese, Creole, English, Korean, Polish, Russian, and Spanish. Penalties for failing to provide notices in a timely manner can be as high as $50 to $100 per employee per week.

A Democratic state senator who sponsored the bill in 2010 has stated that she believes the law should be "tweaked." For example, she says that employers who provide weekly or bi-weekly pay stubs, which generally contain income and withholding information, should not be required to file annual notices as well. The purpose of the law, she told WGRZ, was to help the Department of Labor investigate and penalize employers who bilk employees out of wages or skip out on payroll taxes. Put another way, the WTPA was intended to catch "bad employers," not add burdens to good employers.

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Technology has given businesses many different ways to collect payments from their customers, to the point that cash makes up only a portion of revenue for some businesses, and others do not receive cash at all. Credit card payments form a large part of how businesses collect payments, both through merchant accounts and services like PayPal. The fees associated with such payment methods are often more than worth the convenience they offer. Small businesses accepting credit cards through merchant accounts, in which a financial institution pays the business the amount of a transaction minus a small percentage, should know of recent legislation that may impose some reporting requirements on them come tax time.

The Housing Assistance Tax Act of 2008 became law in June 2008, primarily as a means of addressing the subprime mortgage crisis that had begun the previous year. The law mainly affects banks and other financial institutions that engage in mortgage lending, authorizing the Federal Housing Administration to guarantee certain fixed-rate mortgages and allowing states to refinance subprime mortgage loans. The financial crisis of late 2008 had a significant impact on Fannie Mae and Freddie Mac, two intended beneficiaries of the law, but certain provisions of the law have an impact even outside of the real estate sphere.

According to regulations from the Internal Revenue Service (IRS) that took effect in 2011, "payment settlement entities" must report payments made to merchants for credit card and other third-party credit transactions. "Payment settlement entities" are defined as banks and other financial companies that receive and process credit card, debit card, and other credit-based transactions for businesses (or "merchants.") This does not impose any additional tax liability, but rather requires reporting by these payment settlement entities of the amounts they pay to merchants, which could be companies of any size or even individuals who accept credit cards as part of their business activities. These reports are included in a Form 1099-K issued by payment settlement entities at the end of each calendar (or fiscal) year.

The important consideration for companies that accept credit card payments is this: reports by payment settlement entities do not include any credits, offsets, discounts, refunds, or other modifications made by the merchant for the customer. This means that the amount stated by the payment settlement entity on the 1099-K might not match the amount of income reported by the merchant to the IRS. The merchant then has the responsibility of accounting for the difference in the corporate or partnership tax returns or Schedule C of a personal 1040 form.

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The New Jersey Institute of Technology (NJIT) announced in late December that it is moving forward with an $80 million plan to develop a "Greek Village" for its undergraduate students on its Newark campus. Newark's planning board approved construction of six buildings as part of the project, including five three-story duplexes and a six-story "Honors College building," according to NJ.com. The new buildings will house dormitories, mixed-use commercial space, a dining area, and a fitness facility. NJIT's campus near downtown Newark is currently home to about 1,600 students, and the new development will create room for 600 more. The new buildings will replace a 2-acre parking lot.

A private corporation created by the school to manage the development is working out financing and hopes to complete construction by March 2013. By creating a private entity, NJIT has the opportunity to apply for tax benefits under the state's Urban Transit Hub Tax Credit program. This program provides tax credits up to 100% for certain capital investments made by individuals or businesses in designated urban areas, in an effort to promote private equity investment in development projects. Since the school is a public entity, it may also be able to raise funds through a bond election.

The corporation's president describes the development plan as a "community development initiative" not limited to the benefit of NJIT. The Greek Village project is the first phase of a billion-dollar "Campus Gateway Redevelopment Plan" that will eventually redevelop about 23 acres around the NJIT campus.

The Greek Village is intended to replace the aging buildings on Martin Luther King Jr. Boulevard used by the school's Greek organizations. The school hopes that the existing buildings will be replaced by mixed-use developments, combining retail or office spaces at street level with residence above. The development therefore offers opportunities to create new businesses in both an as-yet-unused part of the campus and an older, established but slightly run-down part of Newark.

As of late December, eight of NJIT's eighteen Greek organizations had agreed to move to the new location. Many students had mixed feelings, citing the existing Greek area's history despite the often-poor condition of many of the buildings. Non-student residents of that area seem more receptive to the idea, as it brings in new development to the neighborhood and moves the frat parties to the NJIT campus.

Continue reading "Major Downtown Newark Development Offers Opportunities for Small Businesses" »

The U.S. Small Business Administration (SBA) announced last week that it will make economic injury disaster loans (EIDL's) available to small businesses and other qualifying organizations in Bergen County, New Jersey. Because Bergen County is adjacent to several New York counties that were designated disaster areas, it is eligible for inclusion in the program. The disaster designation came as a result of damage caused in August and September by Hurricane Irene and Tropical Storm Lee. The SBA's disaster declaration accompanied a similar declaration from the U.S. Secretary of Agriculture. Loans are available to small businesses, aquaculture businesses, and agriculture cooperatives, as well as many private nonprofits.

Bergen County, in northeast New Jersey, is directly across the Hudson River from New York City. It is New Jersey's most populous county, with more than 900,000 residents. Hurricane Irene hit the area in August 2011, followed by Tropical Storm Lee a few weeks later, and caused more than $60 million in damage to north New Jersey municipalities. Local businesses and other private property sustained as much as $200 million in damage. Authorities have called it one of the worst natural disasters in the state's history. President Obama declared all twenty-one New Jersey counties to be eligible for disaster relief, with the Federal Emergency Management Agency (FEMA) covering much of the cost of repairing infrastructure and government buildings. The SBA's disaster declaration now makes federal assistance available to area businesses hurt by the storms.

EIDL's are available to certain businesses and organizations in disaster areas designated by the SBA or the Department of Agriculture. The purpose of an EIDL is to help a business recover from economic damage resulting from a physical disaster such as a hurricane or earthquake, and to maintain a "reasonable working capital position." EIDL's are only available to businesses that, in the SBA's determination, cannot get credit from private sources. Loans are available up to $2 million, with interests rates not to exceed four percent. For nonprofit organizations, the interest rate is three percent. The term of an EIDL cannot be longer than thirty years. The SBA will review a business' total amount of debt and its ability to repay its debts in determining the amount and term of a loan.

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