According to Notice 2014-21 published by Internal Revenue Service (“IRS”), cryptocurrency such as bitcoin is treated as property for federal tax purposes. Therefore, general tax principles applicable to property transactions apply to transactions using cryptocurrency.

As cryptocurrency is treated as property, transactions using cryptocurrency can generate capital gain or loss. Here are some examples of taxable cryptocurrency events: (1) selling cryptocurrency for cash, (2) paying for goods or services with cryptocurrency (3) buying one cryptocurrency with another cryptocurrency (4) receiving mined cryptocurrency, and (5) being paid in cryptocurrency.

In order to calculate your taxable gain or loss from cryptocurrency, you have to determine your basis for cryptocurrency and fair market value of the property or service you received. The basis is the amount you spent to acquire the virtual currency, including fees, commissions, and other acquisition costs. For example, you bought one bitcoin at $10,000. After 11 month, you sold the same bitcoin to purchase a car at fair market value of $12,000. In this case, you must report your capital gain of $2,000 on form 8949 with your basis of $10,000, proceeds of $12,000. Those amounts will show on Form 1040 schedule D.

In order to decide which units of cryptocurrency are deemed sold, exchanged, or otherwise disposed of, you can use two methods. The first method is to identify a specific unit of virtual currency either by documenting the specific unit’s unique digital identifier such as private key and public key, or by records showing transactions information for all units of cryptocurrency. This information must show (1) the date and time each unit was acquired, (2) your basis and the fair market value of each unit at the time it was acquired, (3) the date and time each unit was sold, exchanged, or otherwise disposed of, and (4) the fair market value of each unit when sold, exchanged, or disposed of, and the amount of money or the value of property received for each unit. The second method is on a first in, first out (“FIFO”) basis. The units are deemed to have been sold, exchanged, or disposed of in chronological order.

Starting in 2020, people who have transactions using cryptocurrency will receive either 1099-K or 1099-B. If you receive 1099-K, the amount simply represents the gross proceeds from your reportable transactions but not the amount of taxes owed. Therefore, you will need to report those amounts on form 8949 with your basis to calculate correct capital gain or loss. On form 1099-B, every information you need to report your capital gain or loss will be given.

Written by Jay Jang

Edited by Kevin Jang

As the President Trump signs the Consolidated Appropriations Act, 2021 (the “Act”), employers are expected to receive additional benefits from the employee retention tax credit enacted under the CARES Act. The credit was designed to provide a refundable tax credit for companies that continue paying their employees. Here are some of the highlights of the key changes included in the bill:

• The Act extends the availability of the credit to companies who received PPP loans. The Act allows employers who received PPP loans to remain eligible for the employee retention credit with respect to wages that are not counted as forgiven payroll costs under the PPP.
• The Act extends the availability of the credit to the first two quarters of 2021.
• The amount of credit is 50% of the qualified wages paid to the employee, plus the cost to continue providing health benefits to the employee paid between March 12, 2020 and December 31, 2020. Effective January 1, 2021, the credit amount is increased to 70% of qualified wages, which is amended to include the cost to continue providing health benefits. Therefore, whereas the credit was capped at $5,000 ($10,000 in qualified wages X 50%), effective January 1, 2021, the credit cap is increased to $7,000 ($10,000 in qualified wages X 70%).
• The Act lowers the bar on reduction in gross receipts from 50% reduction in gross receipts to 20% reduction.

월요일 저녁, 미국 상원과 하원에서 Consolidated Appropriations Act, 2021이라는 이름의 코로나 판데믹을 극복하기 위한 법안을 통과시켰다. 총 9천억 달러 규모의 이 법안은 PPP 대출의 2차 라운드 및 PPP 관련 비용의 세무상 공제에 대한 내용을 포함하여 여러가지 경제 활성화를 위한 규정을 다루고 있다. 이 법안은 트럼프 대통령의 서명만을 남겨두고 있어 곧 입법화가 될 것으로 예상된다.

2차 PPP

이 법안은 처음 대출하는 업체 및 기존에 PPP 대출을 받았던 업체에게 2차 PPP대출을 허용한다. 기존에 PPP를 받았던 업체들의 경우에는 직원의 숫자가 300명 미만이고, 1차 PPP대출에 받은 돈을 다 소진하였고, 2020년도 분기 중 한 분기가 2019년도 동분기 대비 25% 이상의 매출이 감소한 경우에 최대 2백만불까지의 2차 대출이 허용된다.

1차 PPP를 받지 않은 업체들의 경우에는 다음과 같은 요건을 충족하는 경우 2차 PPP 대출을 받을 수 있다:

• 직원의 숫자가 500명 미만이고 다른 SBA 7(a) 대출을 받을 수 있는 업체
• 개인사업자, 외부 용역자, 및 자영업자
• 교회를 포함한 비영리 단체
• 각 로케이션별로 직원의 숫자가 300명 미만인 음식 및 서비스 업체

1차 PPP와 마찬가지로 PPP대출의 금액은 전년도의 월 평균 급여의 2.5배로 산정되게 되지만, 최고 금액은 2백만불로 제한이 된다. 마찬가지로 상환금액을 탕감받기 위해서는 대출금의 60% 이상을 8주 혹은 24주의 기간안에 사용이 되어야 하며, 탕감을 받는데 고려되는 비용은 급여, 렌트, 모기지 이자비용, 및 유틸리티가 있다. 또한, 2차 PPP의 탕감에는 개인보호장비 구매 및 시설 변경 등 연방정부의 COVID-19 지침에 준수하기 위해 들어간 비용들도 포함이 될 것으로 보인다.

PPP 비용의 세무상 공제

이 법안이 통과되게 되면, PPP loan의 탕감신청을 하는데 고려되는 비용들도 세무상 공제가 되게 된다. 이 내용은 IRS가 앞서 발표하였던 PPP 관련 비용의 세무상 공제를 금지하는 규정을 대체하게 된다.

보다 간단해진 탕감 신청 및 기타

이 법안이 입법화 되게 되면 $150,000 미만의 PPP 대출의 탕감 신청이 보다 간단해 지게 된다. $150,000 미만의 PPP대출을 갖고 있는 업체들의 경우 관련된 대출금을 PPP의 목적에 맞게 사용하였다는 확인만 하면 탕감이 될 것으로 보인다.

또한, 기존에는 PPP 탕감시에 경제적 손실 재난 대출로 선급받은 금액 (EIDL Advance)은 제외 되었으나 이 법안은 이와 같은 제한을 폐지한다.

Monday night, the U.S. Senate and House of Representatives passed Consolidated Appropriations Act, 2021 (the “Bill”). This $900 billion COVID-19 relief bill provides, among other things, second round of Paycheck Protection Program (“PPP”) loans and clarifies tax deductibility for PPP expenses. The Bill is on its way to President Trump, who is expected to sign it into law.

Second round of PPP Loans

The Bill provides second round of PPP(“PPP2”). PPP2 loans are available to first-time qualified borrowers and to businesses that previously received a PPP loan. Previous PPP recipients may apply for another loan of up to $2 million, provided they have 300 or fewer employees, have used or will use the full amount of their first PPP loan, and can show a 25% gross revenue decline in any 2020 quarter compared with the same quarter in 2019.

Second round of PPP loans are available to following first-time borrowers from the following groups:

• businesses with 500 or fewer employees that are eligible for other SBA 7(a) loans.
• Sole proprietors, independent contractors, and eligible self-employed individuals.
• Not-for-profits, including churches.
• Accommodation and food services operations (those with NAICS codes starting with 72) with fewer than 300 employees per physical location.

As with PPP1, borrowers may receive a loan amount up to 2.5 times their average monthly payroll costs in the year prior to the loan or the calendar year, but the maximum loan amount has been limited to $2 million.

To be eligible for full loan forgiveness, PPP borrowers will have to spend no less than 60% of the funds on payroll over a covered period of either eight or 24 weeks — the same parameters PPP1 had when it stopped accepting applications in August. The costs eligible for loan forgiveness in PPP2 include payroll, rent, covered mortgage interest, and utilities. PPP2 also makes the following potentially forgivable:

• Covered worker protection and facility modification expenditures, including personal protective equipment, to comply with COVID-19 federal health and safety guidelines.
• Expenditures to suppliers that are essential at the time of purchase to the recipient’s current operations.
• Covered operating costs such as software and cloud computing services and accounting needs.

Tax Deductibility of PPP Expenses

The bill also specifies that business expenses paid with forgiven PPP loans are tax-deductible. This supersedes IRS guidance released earlier in 2020 that such expenses could not be deducted.

Simplified Application and Other Terms of Note

The Bill creates a simplified forgiveness application process for loans of $150,000 or less. These borrowers will receive forgiveness upon submission of one-page certification form to be developed by the SBA.

The Bill also repeals the requirement that PPP borrowers deduct the amount of any EIDL advance from their PPP forgiveness amount.

Financial Statement Impact of PPP Loan

The Paycheck Protection Program (“PPP”) was established as part of the Coronavirus Aid, Relief and Economic Security Act (“CARES Act”) and it provides loans to qualifying businesses for amounts up to 2.5 times of the average monthly payroll expenses. The loans and accrued interest may be partially or fully forgivable, if the borrower uses the proceeds for qualifying expenses such as payroll, employee benefits, mortgages interest, rent, and utilities. The amount of loan forgiveness may be reduced if the borrower terminates employees or reduces salaries during the covered period. The unforgiven portion of the PPP loan is payable over two years with an option of extension to five years at an interest rate of 1%, with a deferral period of up to ten months.

AICPA issued Technical Question and Answer (TQA) 3200.18 (the “TQC”) in accordance with US GAAP which addresses non-governmental accounting for forgivable loans received under the PPP. According to the TQA, non-governmental entities may account for PPP loans under FASB ASC Topic, 470, Debt, or as a government grant under FASB ASC Topic 958-605, Not-for-Profit Entities, when certain circumstances are met.

The entities, that are not governmental nor nonprofit, can treat the PPP loan as either 1) debt or 2) government grants.

• Loan (ASC Topic 470-50) – if an enterprise elects to treat the PPP loan as a debt, it can be derecognized only upon formal forgiveness of the debt by the lender (SBA) or repayment of the debt. The amount of loan forgiveness received can then be recorded as gain on extinguishment of debt.

• Grant (ASC Topic 958-605) – if an enterprise expects to meet the forgiveness eligibility requirements and concludes that it can be forgiven, in substance, then PPP loan can be treated as grant.

Additionally, subsequent to the passage of the CARES Act, the IRS clarified in Notice 2020-32 that (i) no deduction is allowed under the Internal Revenue Code for an expense that is otherwise deductible if the payment of the expense results in forgiveness of the PPP loan, and that (ii) the income associated with the forgiveness is excluded from gross income for purposes of the Code pursuant to section 1106(i) of the CARES Act. This precludes to deduct business expenses funded with PPP loan proceeds that are ultimately forgiven, thereby preventing taxpayer from claiming a double tax benefit on the qualifying expenses for PPP loans.

Therefore, while forgiveness loan amount is excluded from gross income, the PPP loan amounts used for qualifying expenses are nondeductible for federal tax purposes. Nontaxable forgiveness loan amount and the nondeductible qualifying expenses are permanent differences which are not subject to the tax provision. If borrower have nontaxable forgiveness loan amount and nondeductible expenses in the same period for tax purposes, there is no impact on the tax provision. However, if borrower uses the proceeds for qualifying expenses which are not deductible in 2020 and receive forgiveness which are excludable from income in 2021, then unfavorable tax treatment will have occurred in 2020.

The following examples illustrate the varying financial reporting and tax consequences of the Notice 2020-32:

Example 1: 100% Certain about Full Forgiveness of PPP Loan

Assume that Company X received PPP loan $700,000 on June 1, 2020. As of December 31, 2020, the Company X expects to meet all the forgiveness eligibility requirements and concludes that the full forgiveness of $700,000 is probable.  In this case, Company X can elect to treat the PPP loan as grant, recognizing the gain on the income statement.

Following is the presentation on the financial statements and tax provision:

The non-deductible compensation expense and non-taxable grant income occurs in the same tax year. Thus, no tax impact.

Example 2: Uncertain about Full or Partial Forgiveness of PPP Loan

Assume that Company X received PPP loan $700,000 on June 1, 2020. As of December 31, 2020, the Company X is uncertain whether it will meet the forgiveness eligibility requirements. In this case, Company X must treat the PPP loan as a loan. Since the loan can only be written off from its balance sheet (i) when the loan is paid or (ii) when the entity is legally released from the liability, the Company X’s 2020 balance sheet would include a loan of $700,000.

Following is the presentation on the financial statements and tax provision:

The non-deductible compensation expense and PPP loan – dischargeable income occurs in the different tax year. Therefore, timing difference of tax effect occurs.

Example 3: Expect Partial Forgiveness of PPP Loan

Assume that Company X received PPP loan $700,000 on June 1, 2020. As of December 31, 2020, the Company X meets the partial forgiveness eligibility requirements and expect to receive partial forgiveness of $500,000. In this case, Company X may record as gain on the portion of a PPP loan that expect to be forgiven and the remainder as a loan.

Following is the presentation on the financial statements and tax provision:

The non-deductible compensation expense and grant income occurs in the same tax year. Thus, no tax impact on forgivable portion of loan $500,000. Unforgivable portion of loan will be remaining as a loan on Company X’s balance sheet.

As shown in above, depending on how the PPP loans is treated as either debt or grants, taxpayer may have some different impact on income tax provision. Thus, each entity is required to carefully review the circumstances and related regulations when determining proper accounting and tax treatment. Please consult with your service provider.

ASU 2018-15는 ASC 350-40 (내부사용목적 소프트웨어) 에 서비스 계약인 클라우드 컴퓨팅 약정에 대한 내용을 다루고 있다.

일반적으로, ASC 350-40-30에 따라 내부사용목적의 소프트웨어를 개발하는데 발생한 비용은 자산인식될 수 있다. 이 비용에는 소프트웨어 개발에 직접적인 관련이 있는 직원의 급여 및 출장 비용이 포함된다. ASU 2018-15에 따르면, 클라우드 컴퓨팅 약정에 내부사용목적 소프트웨어에 대한 라이센스가 포함된 경우 소프트웨어 라이센스는 ASC 350-40에 따라 처리되어야 하며, 이에 따라 회사는 자산화 할 비용과 비용 처리할 경비를 결정해야한다.

ASC 350-40에 따라 특정 개발 비용 (예를 들어, 교육 비용 및 특정 데이터 변환 비용) 은 자산화 할 수 없다. 따라서, 기업은 구현 활동과 관련된 프로젝트 단계 (예비 프로젝트 단계, 애플리케이션 개발 단계, 또는 사후 구현 단계) 를 결정해야한다. 애플리케이션 개발 단계에 발생한 비용은 비용의 성격에 따라 자산화되고, 약정 기간동안 감가 상각된다. 약정 기간에는 해약이 불가능한 기간과 기업이 약정을 유지할 것으로 합리적으로 확신하는 기간이 포함된다.

예비 프로젝트 및 사후 구현 단계에 발생한 비용은 구현 활동이 수행됨에 따라 비용 처리된다.

이는 기업이 클라우드 컴퓨팅 약정을 시행하기 위해 상당한 비용을 지출할 경우 영향이 있을 것으로 보인다.

외국인 파트너들의 미국 파트너십 지분 매각  관련

IRS에서 Sections 864 (c)(8) 와 1446 (f)에 따른 최종 법안을 발표했다. 이 최종 법안은 2019 년 5 월 각각 제안되었던 법안을 기본으로 하였으며, 미국에 파트너십을 가지고 있는 외국인 파트너들이 알고있어야 할 주요 내용은 다음과 같다.

Section 864 (c)(8) 최종 법안에 따르면 파트너십 지분의 매각 또는 양도로 인해 외국인 파트너가 얻은 손익의 전부 또는 일부는 미국의 영업활동과 관련된 손익으로 취급된다 (Effectively Connected Income 혹은 “ECI”). 이때 미국의 영업활동과 관련된 손익의 금액은 파트너십 지분의 매각 또는 양도일을 기준으로 파트너십이 모든 자산을 공정 시장 가치 (fair market value)로 매각했을 경우 파트너가 분배 받았어야 할 손익금액을 말한다. 이 조항은 미국 파트너십에 직접적인 이해 관계가 있는 외국인 파트너뿐만 아니라 계층화된 파트너십 (tiered partnerships)을 통하여 간접적으로 미국 파트너십에 이해 관계가 있는 외국인 파트너까지도 포함된다.

또한, IRS는 Section 864 (c)(8)에 따라 파트너십 지분 양도대한 원천 징수를 요구하는 Section 1446 (f) 최종 법안을 발효하였다. 이 법안에 따르면, 파트너십 지분의 매각 또는 양도로 발생된 이익의 일부가 Section 864 (c)(8)에 따른 미국 영업활동과 관련된 거래라고 간주될 경우 양수인은 지분의 매각으로 실현 된 금액의 10%에 해당하는 세금을 원천 징수하여야한다.

위의 최종 법안에 포함 된 내용들은 2017 년 12 월 31 일 이후 시작된 파트너십 과세 연도부터 적용된다.

Section 1446 세금을 납부하지 않았거나 납부하여야 될 금액보다 적은 금액을 납부한 파트너십은 원천 징수에 필요한 세금 납부에 대해 Section 1461에 따라 책임을 져야 하며 관련된 범칙금을 납부해야 할 수도 있다.

The ASU 2018-15 extends ASC 350-40 (Internal-Use Software) to Cloud Computing Arrangement that is a service contract.

 In general, under ASC 350-40-30, internal and external costs incurred to develop internal-use computer software shall be capitalized. This includes payroll and travel costs of employees directly involved with the software development. Under ASU 2018-15, if a cloud computing arrangement includes a license to internal-use software, then the software license is accounted for in accordance with ASC 350-40. Therefore, an entity in a hosting arrangement needs to determine (i) which implementation costs to capitalize as an asset and (ii) which costs to expense.

 Costs to develop or obtain internal-use software that cannot be capitalized under ASC 350-40 (such as training costs and certain data conversion costs) cannot be capitalized. Therefore, an entity determines which project stage (i.e. preliminary project stage, application development stage, or postimplementation stage) an implementation activity relates to. Costs for implementation activities in the application development stage are capitalized depending on the nature of the costs, and the entity depreciates the capitalized expense over the term of the arrangement. The term of the arrangement includes the noncancellable period of the arrangement plus periods an entity is reasonably certain to maintain the arrangement.

 Costs incurred during the preliminary project and postimplementation stages are expensed as the activities are performed.

 This may have some impact when an entity spends significant amount of money to implement a cloud computing arrangement. Please consult with your service provider for further details.

US Partnership Interest Disposition by Foreign Partners

The IRS issued final regulations under Sections 864(c)(8) and 1446(f), which retain the basis structure and approach of the respective proposed regulations issued in May 2019.  Here are the key provisions contained in the final regulations that U.S. partnerships with foreign partners, directly and indirectly, should be aware of.

Final regulations under Section 864(c)(8) provide that all or portion of the gain or loss derived by a foreign person from the sale or exchange of a partnership interest is treated as gain or loss effectively connected with the conduct of a US trade or business (ECI). The amount of effectively connected gain or loss is the amount of effectively connected gain or loss that the foreign person would have been allocated had the partnership sold all its assets at fair market value as of the date of the sale or exchange of the partnership interest.  The provision is relevant to foreign person with a direct interest in a US partnership as well as tiered partnerships.

The IRS also finalized regulations under Section 1446(f), which requires withholding on the transfer of a partnership interest subject to the Section 864(c)(8).  The final regulations require the transferee to deduct and withhold a tax equal to 10% of the amount realized on the disposition if a portion of the gain would be treated as effectively connected with the conduct of a US trade of business under Section 864(c)(8).

Generally, the provisions contained in the two final regulations are applicable for partnership taxable years beginning after December 31, 2017.

A partnership that is required to pay Section 1446 tax but fails to do so, or pays less than the amount required, is liable under Section 1461 for the payment of the tax required to be withhold and may be subject to severe penalties.

The IRS released a draft of the instructions for Form 1065 (“Proposal”) for 2020 tax year which contains the IRS’s proposed requirement for reporting partners’ capital on the schedule K-1 on a transactional tax basis.  This requirement is expected to add significant compliance hours unless the partnership has been tracking partners’ capital using tax basis.  The IRS is accepting comments on the draft instructions for 30 days and plans to issue final instructions in December.

According the Proposal, partnerships filing Form 1065 for tax year 2020 must calculate partner capital accounts using the transactional approach for the Tax-Basis Method.  Under the tax-basis method, partnerships report partner contributions, the partner’s share of income or loss, withdrawals and distributions, and other increases or decreases using the tax principles as opposed to GAAP or other hybrid methods previously allowed.  Partnerships that did not prepare schedule K-1 under the tax-basis method for 2019 or otherwise maintained tax-basis capital accounts in their books and records may determine each partner’s beginning tax-basis capital account balance for 2020 using one the following methods:  the modified outside basis method, the modified previously taxed capital method, or the Section 704(b) method.

Modified Outside Basis Method

The amount to report as a partner's beginning capital account under the modified outside basis method is equal to the partner's adjusted tax basis in its partnership interest as determined under the principles and provisions of subchapter K including, for example, sections 705, 722, 733, and 742; and subtracting from that basis (1) the partner's share of partnership liabilities under section 752 and (2) the sum of partner's section 743(b) adjustments (that is, net section 743(b) adjustments). For purposes of establishing a partner's beginning capital account, you may rely on the adjusted tax basis information provided by your partners

Modified Previously Taxed Capital Method

The amount to report as a partner's beginning capital account under the modified previously taxed capital method is equal to the following:

• The amount of cash the partner would receive if you liquidated after selling all of your assets in a fully taxable transaction for cash equal to the fair market value of the assets; increased by
• The amount of tax loss determined without taking into account any section 743(b) basis adjustments (including any remedial allocations under Regulations section 1.704-3(d)) that would be allocated to the partner following such a liquidation (treating all liabilities as nonrecourse); and decreased by
• The amount of tax gain determined without taking into account any section 743(b) basis adjustments (including any remedial allocations under Regulations section 1.704-3(d)) that would be allocated to the partner following such a liquidation (treating all liabilities as nonrecourse). Instead of using the assets' fair market value, you may determine the partnership's net liquidity value, and gain or loss, by using such assets' bases as determined under section 704(b), as determined for financial accounting purposes, or on the basis set forth in the partnership agreement for purposes of determining what each partner would receive if the partnership were to liquidate, as determined by partnership management.

704(b) Method

The amount to report as a partner's beginning capital account under the section 704(b) method is equal to the partner's section 704(b) capital account, minus the partner's share of section 704(c) built-in gain in the partnership's assets, plus the partner's share of section 704(c) built-in loss in the partnership's assets. Property contributed to a partnership is section 704(c) property if, at the time of the contribution, its fair market value differs from its adjusted tax basis. Section 704(c) property also includes property with differences resulting from revaluations (reverse section 704(c) allocations). For more information see sections 704(b) and 704(c) and Regulations sections 1.704-1 through 1.704-3.