Articles Posted in Real Estate

For those of us that actually read the bottom of their lawyer‘s email you probably noticed the arcane “IRS Circular 230 Disclosure” that stated the advice contained in this email is not intended and cannot be used for tax avoidance purposes etc… You then probably thought to yourself, but I was just confirming lunch, what the heck does this have to do with tax advice anyway? Perhaps a little perspective is in order.

Circular 230 was the IRS’s compilation of regulations regarding tax services provided by lawyers and other tax professionals with respect to the tax shelter abuses of the 1990s. Circular 230 set the minimum standard with respect to written tax advice and therefore wound up being placed on everything.

Thankfully the IRS issued new rules on June 12 (click here for PDF of rule) which included the following statement; “Treasury and the IRS expect these amendments will eliminate the use of a Circular 230 disclaimer in email and other writing.” Good riddance and where are we meeting for lunch again?
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These are dangerous times to be starting your new business. The economy is tight, money is not readily available and your legal budget is next to nil. You’ve heard that you need to incorporate to protect your family assets and you keep hearing on the radio that you don’t need a lawyer. In fact, you do some quick internet research and feel you can do it yourself. Having practiced for over 20 years now I am confident in stating that yes you can do this on your own but you might make a critical mistake. Doing legal research online without the appropriate background is dangerous. The first answer you get may not be the correct answer and you really are not in a position to recognize whether what you found on the web is just what you “wanted” to find or really the legally correct answer.

For example, after you incorporate you need to decide whether you want to be a C corporation or an S corporation. Usually the S election is preferable for smaller entities because it eliminates taxation at the shareholder level whereas a C corporation is taxed at both the corporate level and the shareholder level. Seems straightforward enough, right? You google S election and click on a link to the Department of Revenue website (click here) where it clearly states that any federal S election is automatically a S election unless you opt out. However, right under the Department of Revenue’s link is Pennsylvania’s Open for Business website link (click here) that clearly states you must file for S-corporation status within 75 days of incorporation. This is a website that was created for the purpose of assisting new business owners and has the Governor’s name on the top yet its advice is 180⁰ opposite the Pennsylvania Department of Revenue.
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Just last week a new law went into effect in Pennsylvania with very little fanfare but it’s likely to have a major impact on anyone who buys, sells, or owns real estate in the Commonwealth.

Act 93 changed the tax lien law, making real estate tax judgments personal. What does this mean? Before this new law took effect, when a property owner failed to pay their tax bill the municipality would obtain a lien against the property. But because of the way liens worked, this was not a judgment against the owner, only against that one property. This procedure led to a situation in which many property owners simply did not pay their real estate taxes. In cities like Philadelphia, where a lot of rental properties are owned by small investors or passed down between family members, this has created tax collection issues. Since the municipal lien didn’t affect the owner’s personally, many owners found it advantageous to simply not pay. If a property owner owed more than the property was worth, they could just kept collecting rent until the Sheriff Sale, if it ever happened. The municipality never got paid what was owed, and personal liability never attached.

Under the new law, the idea is that the lien will also be against the owner, not just the property. This means you will not be able to finance or sell a different property until the lien on the tax delinquent property is paid. Additionally, your own home may be at risk, and you can no longer just walk away from a property without ever paying the tax due. This makes perfect sense; it’s finally giving local municipalities the ability to collect outstanding taxes which is something cities like Philadelphia have spent years clamoring for.

Unfortunately, Act 93 creates as many issues as it solves, something frequently seen in real estate legislation coming from Harrisburg. This new law will clearly mean more work for title insurance companies and Realtors, many of whom didn’t see this coming. There are also open questions with regard to how this will affect large entities and REO properties. Clearly, the banks have foreclosed on numerous properties with tax delinquencies. Having those taxes paid will be a boon to local government, but a nightmare for searchers. Additionally, it’s easy to imagine the situation where a homeowner lacks the equity to both sell a property and clear the lien arising from another investment. I fear in many parts of the Commonwealth this could really hurt the ability of sellers to get out of low equity or distressed properties.

Finally, we are already seeing the impact of this legislation in lease-purchase and rent-to-own deals. The threat of personal judgments being transferred from out of the county to attach to the seller’s property creates the need for a whole new level of due diligence.

Of course, we’ve always recommended to our clients that investment properties should rarely, if ever, be held in their personal name. Using LLC’s, LP’s or corporations as an entity to own your investment property can provide numerous benefits and protection from this new law is only one of them.

If you would like to discuss how this new law may affect you, or how to best structure your portfolio in light of these ongoing changes, please feel free to contact H. Adam Shapiro of Danziger Shapiro & Leavitt and we will be happy to review and discuss your situation with you.

The October 31, 2013 compliance deadline under Philadelphia’s Energy Conservation Act is fast approaching. As previously detailed in my earlier blog entry (click here), commercial landlords have only until the end of October 2013 to comply and register their building’s electrical and water usage rates as well as other building characteristics. Fines will be levied for noncompliance.
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Delaware recently joined the fast growing Benefit Corporation “club”. Effective August 1, 2013, Delaware became the 20th state to adopt its own version of the Benefit Corporation. The provisions governing this new business entity can be found under new Subchapter XV of the Delaware General Corporation Law. Earlier this year you may recall (click here) I discussed how Pennsylvania became the 12th state to adopt its version of the Benefit Corporation.

The Delaware Benefit Corporation is almost identical to the Pennsylvania Benefit Corporation. Both acts are designed to allow “social” entrepreneurs to focus not only on the bottom line but to also consider other non economic societal factors (community, environment, employees etc…). Both acts have provisions governing allowed purposes, accountability and transparency requirements (although Delaware has an every 2 year reporting requirement as opposed to Pennsylvania’s every year).

One interesting difference between the two states relates to derivative litigation (click here for link to derivative information on Danziger Shapiro & Leavitt website). While Pennsylvania is silent with respect to minimum share ownership requirements for shareholders to bring derivative actions, Delaware decided to establish minimum share ownership requirements. Most likely, this is a reflection of Delaware recognizing the practical consequences that will follow by allowing officers and directors to consider subjective societal concerns when making business decisions. Namely; not everyone shares the same political, religious and social concerns. By placing a minimum share ownership requirement in order to bring a derivative action, Delaware is just trying to reduce the strain on an already overburdened court system.
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An angel investor who invests in a “qualifying” New Jersey emerging technology business in tax year 2012 and beyond is now eligible to receive a tax credit of up to 10% of the total amount invested. This law is designed to stimulate investment in emerging New Jersey technology companies by allowing the investor to use the 10% tax credit as a direct offset against an investor’s New Jersey business or gross income tax. While Governor Christie signed this act, known as the New Jersey Angel Investor Tax Credit Act, into law on January 31st of this year, the underlying rules do not come out until today, August 5, 2013, in the New Jersey Register.

The act defines both “qualified investment” and “New Jersey emerging technology business” and I will not bore you with every detail here. However, in brief; in order for an investment to be a “qualified investment,” the investment must be a non-refundable transfer of cash to a “New Jersey emerging technology business” in exchange for rights to participate in the upside of the business or to use or market the technology.

To be considered a “New Jersey emerging technology business,” the act specifies the physical connection the company must have to New Jersey as well as the technological areas the business must be involved with. For example, the New Jersey business must have fewer than 225 employees, of whom at least 75 percent work in New Jersey. The company must also transact business, own property, or maintain an office in New Jersey. Finally, the company is required to operate in one of the following industries: advanced computing, advanced materials, biotechnology, electronic device technology, information technology, life sciences, medical device technology, mobile communications technology or renewable energy technology.

For investments made on or before July 1, 2013, an investor must submit a completed application before July 1, 2014. For all other investments, an investor must submit a completed application within one year of the date of the qualified investment. There are application fees not to exceed $1000 and approval fees that will be offset against the tax credit.
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Owners of commercial buildings located in Philadelphia in excess of 50,000 square feet are now required to measure energy and water usage and report the results into the EPA’s Energy Star Portfolio Manager annually. Bill No. 120428A titled “Energy Conservation” went into effect last month on June 13.

Under this new ordinance, the owner of a “covered building” must report the required information no later than June 30 of each year for the previous calendar year. For 2013 only, information must be entered into the EPA’s system by October 31, 2013.

Required information will include the building’s energy and water usage as well as the building’s “characteristics”. A building’s characteristics are defined to include not only the street address and year the building was built, but also specific items such as the percent of the building heated or air conditioned and the number of computers and refrigeration/freezer units in the building. The ordinance requires that each building’s characteristics must be updated annually. Failure to comply will result in the City assessing fines against the building owner.

What does this mean from a landlord and tenant perspective going forward? From the landlord’s point of view, it means that you are going to have to immediately notify tenants of the new reporting requirements and the associated deadlines. Going forward landlords should consider default and penalty provision language as possible additions to new leases.

From the tenant perspective, a tenant should consider what impact this new legislation will have on a landlord. Will public access to the results contained in the Energy Star Manager force landlords to update their mechanical systems? If so, will such improvements be passed onto the tenant? Can carefully crafted representations and warranties in the lease protect the tenant from these types of improvements being passed onto the tenant?
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Pennsylvania has just passed legislation that allows, if certain conditions are met, the tax free transfer of a family owned business to a decedent’s heirs. The idea behind this exemption is in these tight economic times to keep businesses in the family. This financial burden comes at a critical juncture as the business is now faced with not only a forced transfer of organizational control, but an inheritance tax bill when nothing has changed in the actual running of the fundamental core business. In some cases, the business is forced to sell assets to meets its inheritance tax obligations or in dire circumstances, has to shut down business operations altogether. While the local governments want to collect every penny they can, our elected officials also know this hurts the economy at the grass roots level because when an otherwise viable business shuts down only because it cannot afford to pay an inheritance tax, employees who were gainfully employed are now added to the unemployment line and this becomes another drain on the local economy.

With this as background, in order to be entitled to the family owned business inheritance tax exemption the following requirements must be met:

• Qualified Business – The business must be a “qualified business” which requires that the business must be operated by either a sole proprietor or through a business entity (LLC, partnership or corporation). The business must have fewer than 50 employees and a net book value of less than $5million dollars.

•Ownership of Qualified Business – The business must have been in existence for the past 5 years and must have been owned by the decedent and members of the decedent’s family.

•Qualified Transferees
– The “qualified business” may only be transferred to “qualified transferees”. Qualified transferees are, as you would expect, the decedent’s immediate family – spouse, children, grandchildren, siblings, cousins, parents and grandparents.

•Time Restriction – In order to retain this tax savings, the family business may not be transferred to another individual or entity for a period of 7 years from the date of the decedent’s death. Yearly certifications to the taxing authority will be required. If the business is transferred within this 7 years period, all inheritance tax plus interest that would have been due will now become immediately due and payable.
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The 2014 Pennsylvania property tax appeal deadline for Philadelphia and the surrounding four counties is fast approaching. The deadlines are as follows:

August 1: Buck, Chester, Delaware and Montgomery
October 7: Philadelphia
With the Pennsylvania State Tax Equalization Board releasing the new Common Level Ratio (CLR) on July 1, this leaves a very short time period to determine whether an appeal is necessary. (Please click to see my February 2013 post on how the CLR is used to determine your property tax)
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The New Jersey Uniform Limited Liability Company Act (the Act) was enacted in 1994 and governs NJ limited liability companies (LLCs). The Revised Uniform Limited Liability Company Act (the Revised Act) is the first major revision to the Act since its inception. Only NJ LLC’s formed after March 18, 2013 will currently be governed by the Revised Act. Effective March 1, 2014 however, all LLCs will fall under the authority of the Revised Act.

The amendments are designed to bring the Act more in line with the Model Revised Uniform Limited Liability Company Act. As of this posting, only seven states and the District of Columbia have adopted the RULLCA in some fashion. While it is beyond the scope of this post to identify all changes made by the amendment, I have listed some of the major changes below.

1. Perpetual Duration. Under the Revised Act LLCs will have perpetual duration while under the old Act duration was limited to 30 years.

2. Business Purpose. The Revised Act allows an LLC to be formed for any business purpose, including operating as a non-profit organization.

3. Oral Operating Agreements. Believe it or not, oral operating agreements are now allowed under the Revised Act. Under the old Act, oral agreements were not allowed. If the agreement was not in writing it did not exist. Under the amendments, a course of conduct or behavior can be used as evidence to support the terms of an “oral agreement.”

4. Indemnification. The Revised act now requires that the LLC indemnify and hold harmless its members and managers. Under the old Act indemnification was discretionary.

5. Fiduciary Duties. Fiduciary duties are allowed to be altered if not “manifestly unreasonable” although the operating agreement cannot authorize or otherwise allow intentional misconduct/violation of laws.

Other issues affected by the amendments relate to charging liens, disassociation, oppression and limitations on a member’s liability to another member – to name a few. While we always recommend that shareholder operating agreements are reviewed every few years, it is now critical that LLCs in existence prior to March 18, 2013 have their operating agreements updated to conform to the new rules.
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