The Top 5 Key Benefits of Purchasing and Owning Investment Real Estate

So… You may ask yourself, why should you buy or invest in real estate in the First Place? Because it’s the IDEAL investment! Let’s take a moment to address the reasons why people should have investment real estate in the first place. The easiest answer is a well-known acronym that addresses the key benefits for all investment real estate. Put simply, Investment Real Estate is an IDEAL investment. The IDEAL stands for:

• I – Income
• D – Depreciation
• E – Expenses
• A – Appreciation
• L – Leverage

Real estate is the IDEAL investment compared to all others. I’ll explain each benefit in depth.

The “I” in IDEAL stands for Income. (a.k.a. positive cash flow) Does it even generate income? Your investment property should be generating income from rents received each month. Of course, there will be months where you may experience a vacancy, but for the most part your investment will be producing an income. Be careful because many times beginning investors exaggerate their assumptions and don’t take into account all potential costs. The investor should know going into the purchase that the property will COST money each month (otherwise known as negative cash flow). This scenario, although not ideal, may be OK, only in specific instances that we will discuss later. It boils down to the risk tolerance and ability for the owner to fund and pay for a negative producing asset. In the boom years of real estate, prices were sky high and the rents didn’t increase proportionately with many residential real estate investment properties. Many naïve investors purchased properties with the assumption that the appreciation in prices would more than compensate for the fact that the high balance mortgage would be a significant negative impact on the funds each month. Be aware of this and do your best to forecast a positive cash flow scenario, so that you can actually realize the INCOME part of the IDEAL equation.

Often times, it may require a higher down payment (therefore lesser amount being mortgaged) so that your cash flow is acceptable each month. Ideally, you eventually pay off the mortgage so there is no question that cash flow will be coming in each month, and substantially so. This ought to be a vital component to one’s retirement plan. Do this a few times and you won’t have to worry about money later on down the road, which is the main goal as well as the reward for taking the risk in purchasing investment property in the first place.

The “D” in IDEAL Stands for Depreciation. With investment real estate, you are able to utilize its depreciation for your own tax benefit. What is depreciation anyway? It’s a non-cost accounting method to take into account the overall financial burden incurred through real estate investment. Look at this another way, when you buy a brand new car, the minute you drive off the lot, that car has depreciated in value. When it comes to your investment real estate property, the IRS allows you to deduct this amount yearly against your taxes. Please note: I am not a tax professional, so this is not meant to be a lesson in taxation policy or to be construed as tax advice.

With that said, the depreciation of a real estate investment property is determined by the overall value of the structure of the property and the length of time (recovery period based on the property type-either residential or commercial). If you have ever gotten a property tax bill, they usually break your property’s assessed value into two categories: one for the value of the land, and the other for the value of the structure. Both of these values added up equals your total “basis” for property taxation. When it comes to depreciation, you can deduct against your taxes on the original base value of the structure only; the IRS doesn’t allow you to depreciate land value (because land is typically only APPRECIATING). Just like your new car driving off the lot, it’s the structure on the property that is getting less and less valuable every year as its effective age gets older and older. And you can use this to your tax advantage. The best example of the benefit regarding this concept is through depreciation, you can actually turn a property that creates a positive cash flow into one that shows a loss (on paper) when dealing with taxes and the IRS. And by doing so, that (paper) loss is deductible against your income for tax purposes. Therefore, it’s a great benefit for people that are specifically looking for a “tax-shelter” of sorts for their real estate investments.

For example, and without getting too technical, assume that you are able to depreciate $15,000 a year from a $500,000 residential investment property that you own. Let’s say that you are cash-flowing $1,000 a month (meaning that after all expenses, you are net-positive $1000 each month), so you have $12,000 total annual income for the year from this property’s rental income. Although you took in $12,000, you can show through your accountancy with the depreciation of the investment real estate that you actually lost $3,000 on paper, which is used against any income taxes that you may owe. From the standpoint of IRS, this property realized a loss of $3,000 after the “expense” of the $15,000 depreciation amount was taken into account. Not only are there no taxes due on that rental income, you can utilize the paper loss of $3,000 against your other regular taxable income from your day-job. Investment property at higher price points will have proportionally higher tax-shelter qualities. Investors use this to their benefit in being able to deduct as much against their taxable amount owed each year through the benefit of depreciation with their underlying real estate investment.

Although this is a vastly important benefit to owning investment real estate, the subject is not well understood. Because depreciation is a somewhat complicated tax subject, the above explanation was meant to be cursory in nature. When it comes to issues involving taxes and depreciation, make sure you have a tax professional that can advise you appropriately so you know where you stand.

The “E” in IDEAL is for Expenses – Generally, all expenses incurred relating to the property are deductible when it comes to your investment property. The cost for utilities, the cost for insurance, the mortgage, and the interest and property taxes you pay. If you use a property manager or if you’re repairing or improving the property itself, all of this is deductible. Real estate investment comes with a lot of expenses, duties, and responsibilities to ensure the investment property itself performs to its highest capability. Because of this, contemporary tax law generally allows that all of these related expenses are deductible to the benefit of the investment real estate landowner. If you were to ever take a loss, or purposefully took a loss on a business investment or investment property, that loss (expense) can carry over for multiple years against your income taxes. For some people, this is an aggressive and technical strategy. Yet it’s another potential benefit of investment real estate.

The “A” in IDEAL is for Appreciation – Appreciation means the growth of value of the underlying investment. It’s one of the main reasons that we invest in the first place, and it’s a powerful way to grow your net worth. Many homes in the city of San Francisco are several million dollars in today’s market, but back in the 1960s, the same property was worth about the cost of the car you are currently driving (probably even less!). Throughout the years, the area became more popular and the demand that ensued caused the real estate prices in the city to grow exponentially compared to where they were a few decades ago. People that were lucky enough to recognize this, or who were just in the right place at the right time and continued to live in their home have realized an investment return in the 1000’s of percent. Now that’s what appreciation is all about. What other investment can make you this kind of return without drastically increased risk? The best part about investment real estate is that someone is paying you to live in your property, paying off your mortgage, and creating an income (positive cash flow) to you each month along the way throughout your course of ownership.

The “L” in IDEAL stands for Leverage – A lot of people refer to this as “OPM” (other people’s money). This is when you are using a small amount of your money to control a much more expensive asset. You are essentially leveraging your down payment and gaining control of an asset that you would normally not be able to purchase without the loan itself. Leverage is much more acceptable in the real estate world and inherently less risky than leverage in the stock world (where this is done through means of options or buying “on Margin”). Leverage is common in real estate. Otherwise, people would only buy property when they had 100% of the cash to do so. Over a third of all purchase transactions are all-cash transactions as our recovery continues. Still, about 2/3 of all purchases are done with some level of financing, so the majority of buyers in the market enjoy the power that leverage can offer when it comes to investment real estate.

For example, if a real estate investor was to buy a house that costs $100,000 with 10% down payment, they are leveraging the remaining 90% through the use of the associated mortgage. Let’s say the local market improves by 20% over the next year, and therefore the actual property is now worth $120,000. When it comes to leverage, from the standpoint of this property, its value increased by 20%. But compared to the investor’s actual down payment (the “skin in the game”) of $10,000- this increase in property value of 20% really means the investor doubled their return on the investment actually made-also known as the “cash on cash” return. In this case, that is 200%-because the $10,000 is now responsible and entitled to a $20,000 increase in overall value and the overall potential profit.

Although leverage is considered a benefit, like everything else, there can always be too much of a good thing. In 2007, when the real estate market took a turn for the worst, many investors were over-leveraged and fared the worst. They could not weather the storm of a correcting economy. Exercising caution with every investment made will help to ensure that you can purchase, retain, pay-off debt, and grow your wealth from the investment decisions made as opposed to being at the mercy and whim of the overall market fluctuations. Surely there will be future booms and busts as the past would dictate as we continue to move forward. More planning and preparing while building net worth will help prevent getting bruised and battered by the side effects of whatever market we find ourselves in. Many people think that investment real estate is only about cash flow and appreciation, but it’s so much more than that. As mentioned above, you can realize several benefits through each real estate investment property you purchase. The challenge is to maximize the benefits through every investment.

Furthermore, the IDEAL acronym is not just a reminder of the benefits of investment real estate; it’s also here to serve as a guide for every investment property you will consider purchasing in the future. Any property you purchase should conform to all of the letters that represent the IDEAL acronym. The underlying property should have a good reason for not fitting all the guidelines. And in almost every case, if there is an investment you are considering that doesn’t hit all the guidelines, by most accounts you should probably PASS on it!

Take for example a story of my own, regarding a property that I purchased early on in my real estate career. To this day, it’s the biggest investment mistake that I’ve made, and it’s precisely because I didn’t follow the IDEAL guidelines that you are reading and learning about now. I was naïve and my experience was not yet fully developed. The property I purchased was a vacant lot in a gated community development. The property already had an HOA (a monthly maintenance fee) because of the nice amenity facilities that were built for it, and in anticipation of would-be-built homes. There were high expectations for the future appreciation potential-but then the market turned for the worse as we headed into the great recession that lasted from 2007-2012. Can you see what parts of the IDEAL guidelines I missed on completely?

Let’s start with “I”. The vacant lot made no income! Sometimes this can be acceptable, if the deal is something that cannot be missed. But for the most part this deal was nothing special. In all honesty, I’ve considered selling the trees that are currently on the vacant lot to the local wood mill for some actual income, or putting up a camping spot ad on the local Craigslist; but unfortunately the lumber isn’t worth enough and there are better spots to camp! My expectations and desire for price appreciation blocked the rational and logical questions that needed to be asked. So, when it came to the income aspect of the IDEAL guidelines for a real estate investment, I paid no attention to it. And I paid the price for my hubris. Furthermore, this investment failed to realize the benefit of depreciation as you cannot depreciate land! So, we are zero for two so far, with the IDEAL guideline to real estate investing. All I can do is hope the land appreciates to a point where it can be sold one day. Let’s call it an expensive learning lesson. You too will have these “learning lessons”; just try to have as few of them as possible and you will be better off.

When it comes to making the most of your real estate investments, ALWAYS keep the IDEAL guideline in mind to make certain you are making a good decision and a solid investment.

Best Small Business Tips and Ideas

Deciding to start a business can be one of the most exhilarating decisions you make in your life. We are living in a world wherever everyone wants to make extra money and add to his income. Most people have achieved this by acquiring great business ideas. When one starts up a company, he must be ready to meet competition. It is important to note that you would not need to become rich or popular to succeed in business but have to think smartly. But there are a lot of moving parts and many different elements to consider.

10 basic tips essential to start a business successfully.

Tip 1: Get inspired and Love your idea

Every business begins with an idea you may have imagined of opening your own business for years, or motivation may have hit you suddenly. Nevertheless of the source, the first step of starting your own business is coming up with a business idea. And as important as your idea, you must in love with the idea.

Tip 2: Do Your Research / learn everything about the business

You’ve recognized your big idea, now it’s time to balance it with the reality. Are you truly ready to start a business? Answer the questions below and see what you need to prepare yourself for business. For a small business succeed it must fulfill a need, solve a problem or offer something the market wants.

You can identify this need in many ways by doing research, focus groups, and even trial and error.

As you search the market, some of the questions can be:

• Is there a need for your anticipated services or products?
• Who needs it? (Target Costumers)
• Are there other companies offering similar services or products right now?
• How is the competition?
• Can or how will your business fit into the market?

Tip 3: Make a Business Plan

You need a business plan in order to make your business idea a reality. If you expect to seek monetary support from an investor or financial organization, a formal written business plan is a must.

Even if you don’t need monetary support, a simple business plan can give you precision about what you hope to accomplish and how you plan to do it.

In overall, your business plan should summary your business goals and the inspiration behind them, as well as your plan for realization of your goals in terms of marketing and funding.

Tip 4: Planning Finances

Opening a small business doesn’t have to involve a lot of money, but it will involve some investment.

There are a number of methods you can fund your small business:

• With Small business grants
• By Financing
• With Small business loans
• Or Angel investors

You can also attempt to get your business off the ground by bootstrapping, using as little capital as necessary to start your business.

Tip 5: Business Structure

Your small business can be an individual ownership, a partnership, a limited liability company (LLC) or a corporation. The business structure you might choose will impact in many factors from your business name, to liability, and how you file your taxes.

You can choose an initial business structure, and with time re-evaluate and change your structure as your business grows and needs to be changed.Tip 6: The Business Name

The name you choose plays a role in almost every aspect of your business, so you want it to be a good one. Make sure you think through all of the possible consequences as you explore your options and select your business name.

Once you have selected a name, there is the need to check if it’s trademarked, currently in use and if stills free you will need to register it. A individual proprietor must register their business name with either their state or county clerk. Corporations, LLC, or limited corporations usually register their business name when the creation paperwork is filed.

These days you need to have a website, so please don’t forget to register your domain name once you have selected your business name. The best domains and more valuable online are the ones ending with .com.

Tip 7: Licenses and Permits

There are a range of small business licenses and permits that may apply to your situation, depending on the type of business you are starting and where you are placed. You will need to inquiry what licenses and permits apply to your business during the initial process.

Tip 8: The Business Location

Setting up your place to work is essential for the operation of your business, whether you will have a home office, a shared or private office space, or a retail location. You will need to reflect about your place, equipment, and overall setup, and make sure your business place works for the kind of business you will be doing.

Tip 9: Accounting System

One of the most essential systems for a small business is an accounting system. Your accounting system is essential in order to build and manage your budget, set your charges, conduct business with others, and file your taxes. You can set up your accounting system by your own, or hire an accountant to take away some of the work.

Tip 10: Promote Your Small Business

As soon your business is up and running, you need to start attracting customers. You’ll want to initiate with the essentials by writing a single selling offer and building a marketing plan. Explore as many small business marketing ideas as you can so you to choose how to promote your business most successfully. Completed these business start-up actions, you will have all of the most important small business bases protected, and be prepared for small business success.

15 Business Ideas to Generate Extra Income

If you want or need to start a side job because you still need to wait a little bit longer to start your own business, here are 15 suggestions for you.

1. Make money Blogging

If you enjoy writing, find a theme you’re passionate about and start a blog dedicated to covering that theme and anything else interesting you enjoy to talk about. All you need is a laptop, some time, and inspiration to consistently write. It can start as a hobby and turn into a business over time. Creating a blog is free, but if you want to look professional it can cost less than $ 12 per month.

2. Buying or selling on eBay

Thanks to internet there are more opportunities to make money than ever to buy and resell products for extra money. There are lots of people buy at a discount and resell them on eBay for profit.

3. Freelance writing

If you’re great with words, you might be capable to find some work as an online freelancer. A variety of publications need online content in the form of product, stories, service descriptions, and reports, and if you have the talent and ability, you could easily be the one to create them. Luckily, all you need is a computer and Internet connection to get started. You can start here freelancer.com

4. Social media expert

Now a day almost everyone uses Facebook, Twitter, and Pinterest, but did you know that many companies are willing to compensate people to support them managing their social media accounts and sometimes you can do it part-time from home. If this appeals you, to find social media jobs you can start by writing companies with a social media presence and visiting sites like Elance.com for opportunities.

5. Proofreading and editing

Do you have strong English skills and outstanding grammar? You may have chances to work as a proof-reader from home. Marketing for this can be hard; seek out those who might actually be able to use your services and advertise directly to them.

6. Virtual assistant

Many companies and individual professionals like having someone who can check and answer their email, organize task lists for them, someone who can update their calendars, and perform other administrative tasks, with minimal communication. The best of being a virtual assistant is that you can offer this service from home with a good Internet connection.

7. Website design

If you know a little bit about web design you can approach small businesses in your community, as they could use a very basic web presence to tell others about their business. These businesses usually don’t have a large budget for websites and create a great yet simple website is for you, get a bunch of clients from your local community, create sites for them, and maintains them for a small fee. You can easily get enough businesses to have a nice side business of your own with a low investment.

8. Affiliate marketing

Certain types of online businesses will pay you to promote their products and encourage sales. If you’re interested in learning more, check out affiliate marketing programs such as Click-bank, Commission Junction, and these websites are trustworthy and you can earn money by posting their products in your blog, website or Facebook. The secret of online business is all knowing targeting the right public and marketing efficiently. It can be overwhelming with all the information available online as more than 50% of the information is just a waste of time.

9. Become a business or life coach

If you are a good speaker and passionate about the business world and able to inspire and encourage others in a unique way, you could marketing your services as a business or even a life coach. Take your passion and expertise to the next level giving advice and suggest actionable steps people can take to progress their professional and private lives. 10. Start a resume writing service

If you’re excellent at writing remarkable resumes that in the end result in people getting the job, contemplate advertising those services. Most of your work will spin around writing, editing, designing, and proofreading, so you will only need few supplies outside of your computer and basic software to get started.

11. App Developer

Web app development is the creation of application programs that reside on remote servers and are delivered to the user’s device over the Internet. Now a day you can do apps with software’s you don’t really need to be a weirdo to do it, you can be an app developer for Facebook for instance and of course you can do it part-time and home based.

12. Business Consultant

If you are high organized and skilled being a good problem solver this job is for you. Companies bring Business Consultant to identify their problems, provide solutions and optimize companies. The only investments are your skills.

13. Data Entry Service

Many companies and online businesses require some type of manual information tracking, creating a vast amount of data entry work. Although there are many work-at-home scams related with data entry work, there are a lot of genuine chances available for genuine data entry businesses. If you are an excellent typist with an eye for detail, a data entry business is a great idea for you.

14. Freelance Writer

If you have the skill to write and inform people in a certain area, you can write small books or guides and sell them online, the biggest books platform is Amazon.com, where you can display your books for free and when they are sold, you will receive a percentage from the selling. Payments are made every month depending on your sales. Investment is only your time to write and imagination.

15. Internet Researcher

The Internet provides a vast amount of information. If you can quickly and efficiently navigate through that wealth of information, and essentially find a needle in a haystack, you can create a very successful business as an Internet researcher. Search for this kind of job online or about a company which is looking for this of service.

I give you only a glimpse what you could do, and these are just a few ideas, but many ideas were left behind.

First of all I advise you to think what you like to do as a hobby or in your free time, why don’t you make profit from what you are doing already?

You have the world as your disposal, but for a business to work out the first thing from all things is, it doesn’t matter what you intent to do, but you have to love it. If you love what you do it doesn’t feel like a job, you will be doing it with joy and this way you will be successful.

There are some side business opportunities that have grown more common in the past few years. And thanks to internet you have much more opportunities, ideas and help to develop your business.

Limited Liability Corportations and Foreign Investment in California Real Estate

There is some exciting news for foreign investors due to recent geo-political developments and the emergence of several financial factors. This coalescence of events, has at its core, the major drop in the price of US real estate, combined with the exodus of capital from Russia and China. Among foreign investors this has suddenly and significantly produced a demand for real estate in California.

Our research shows that China alone, spent $22 billion on U.S. housing in the last 12 months, much more than they spent the year before. Chinese in particular have a great advantage driven by their strong domestic economy, a stable exchange rate, increased access to credit and desire for diversification and secure investments.

We can cite several reasons for this rise in demand for US Real Estate by foreign Investors, but the primary attraction is the global recognition of the fact that the United States is currently enjoying an economy that is growing relative to other developed nations. Couple that growth and stability with the fact that the US has a transparent legal system which creates an easy avenue for non-U.S. citizens to invest, and what we have is a perfect alignment of both timing and financial law… creating prime opportunity! The US also imposes no currency controls, making it easy to divest, which makes the prospect of Investment in US Real Estate even more attractive.

Here, we provide a few facts that will be useful for those considering investment in Real Estate in the US and Califonia in particular. We will take the sometimes difficult language of these topics and attempt to make them easy to understand.

This article will touch briefly on some of the following topics: Taxation of foreign entities and international investors. U.S. trade or businessTaxation of U.S. entities and individuals. Effectively connected income. Non-effectively connected income. Branch Profits Tax. Tax on excess interest. U.S. withholding tax on payments made to the foreign investor. Foreign corporations. Partnerships. Real Estate Investment Trusts. Treaty protection from taxation. Branch Profits Tax Interest income. Business profits. Income from real property. Capitol gains and third-country use of treaties/limitation on benefits.

We will also briefly highlight dispositions of U.S. real estate investments, including U.S. real property interests, the definition of a U.S. real property holding corporation “USRPHC”, U.S. tax consequences of investing in United States Real Property Interests ” USRPIs” through foreign corporations, Foreign Investment Real Property Tax Act “FIRPTA” withholding and withholding exceptions.

Non-U.S. citizens choose to invest in US real estate for many different reasons and they will have a diverse range of aims and goals. Many will want to insure that all processes are handled quickly, expeditiously and correctly as well as privately and in some cases with complete anonymity. Secondly, the issue of privacy in regards to your investment is extremely important. With the rise of the internet, private information is becoming more and more public. Although you may be required to reveal information for tax purposes, you are not required, and should not, disclose property ownership for all the world to see. One purpose for privacy is legitimate asset protection from questionable creditor claims or lawsuits. Generally, the less individuals, businesses or government agencies know about your private affairs, the better.

Reducing taxes on your U.S. investments is also a major consideration. When investing in U.S. real estate, one must consider whether property is income-producing and whether or not that income is ‘passive income’ or income produced by trade or business. Another concern, especially for older investors, is whether the investor is a U.S. resident for estate tax purposes.

The purpose of an LLC, Corporation or Limited Partnership is to form a shield of protection between you personally for any liability arising from the activities of the entity. LLCs offer greater structuring flexibility and better creditor protection than limited partnerships, and are generally preferred over corporations for holding smaller real estate properties. LLC’s aren’t subject to the record-keeping formalities that corporations are.

If an investor uses a corporation or an LLC to hold real property, the entity will have to register with the California Secretary of State. In doing so, articles of incorporation or the statement of information become visible to the world, including the identity of the corporate officers and directors or the LLC manager.

An great example is the formation of a two-tier structure to help protect you by creating a California LLC to own the real estate, and a Delaware LLC to act as the manager of the California LLC. The benefits to using this two-tier structure are simple and effective but must one must be precise in implementation of this strategy.

In the state of Delaware, the name of the LLC manager is not required to be disclosed, subsequently, the only proprietary information that will appear on California form is the name of the Delaware LLC as the manager. Great care is exercised so that the Delaware LLC is not deemed to be doing business in California and this perfectly legal technical loophole is one of many great tools for acquiring Real Estate with minimal Tax and other liability.

Regarding using a trust to hold real property, the actual name of the trustee and the name of the trust must appear on the recorded deed. Accordingly, If using a trust, the investor might not want to be the trustee, and the trust need not include the investor’s name. To insure privacy, a generic name can be used for the entity.

In the case of any real estate investment that happens to be encumbered by debt, the borrower’s name will appear on the recorded deed of trust, even if title is taken in the name of a trust or an LLC. But when the investor personally guarantees the loan by acting AS the borrower through the trust entity, THEN the borrower’s name may be kept private! At this point the Trust entity becomes the borrower and the owner of the property. This insures that the investor’s name does not appear on any recorded documents.

Because formalities, like holding annual meetings of shareholders and maintaining annual minutes, are not required in the case of limited partnerships and LLCs, they are often preferred over corporations. Failing to observe corporate formalities can lead to failure of the liability shield between the individual investor and the corporation. This failure in legal terms is called “piercing the corporate veil”.

Limited partnerships and LLCs may create a more effective asset protection stronghold than corporations, because interests and assets may be more difficult to reach by creditors to the investor.

To illustrate this, let’s assume an individual in a corporation owns, say, an apartment complex and this corporation receives a judgment against it by a creditor. The creditor can now force the debtor to turn over the stock of the corporation which can result in a devastating loss of corporate assets. However, when the debtor owns the apartment building through either a Limited Partnership or an LLC the creditor’s recourse is limited to a simple charging order, which places a lien on distributions from the LLC or limited partnership, but keeps the creditor from seizing partnership assets and keeps the creditor out the affairs of the LLC or Partnership.

Income Taxation of Real Estate

For the purposes of Federal Income tax a foreigner is referred to as nonresident alien (NRA). An NRA can be defined as a foreign corporation or a person who either;

A) Physically is present in the United States for less than 183 days in any given year. B) Physically is present less than 31 days in the current year. C) Physically is present for less than 183 total days for a three-year period (using a weighing formula) and does not hold a green card.

The applicable Income tax rules associated to NRAs can be quite complex, but as a general rule, the income that IS subject to withholding is a 30 percent flat tax on “fixed or determinable” – “annual or periodical” (FDAP) income (originating in the US), that is not effectively connected to a U.S. trade or business that is subject to withholding. Important point there, which we will address momentarily.

Tax rates imposed on NRAs may be reduced by any applicable treaties and the Gross income is what gets taxed with almost not offsetting deductions. So here, we need to address exactly what FDAP income includes. FDAP is considered to include; interest, dividends, royalties, and rents.

Simply put, NRAs are subject to a 30 percent tax when receiving interest income from U.S. sources. Included within the definitions of FDAP are some miscellaneous categories of income such as; annuity payments, certain insurance premiums, gambling winnings, and alimony.

Capital gains from U.S. sources, however, are generally not taxable unless: A)The NRA is present in the United States for more than 183 days. B) The gains can be effectively connected to a U.S. trade or business. C) The gains are from the sale of certain timber, coal, or domestic iron ore assets.

NRA’s can and will be taxed on capital gains (originating in the US) at the rate of 30 percent when these exceptions apply.Because NRA’s are taxed on income in the same manner as a US taxpayers when that income can effectively be connected to a US trade or business, then it becomes necessary to define what constitutes; “U.S. trade or business” and to what “effectively connected” means. This is where we can limit the taxable liability.

There are several ways in which the US defines “US trade or Business” but there is no set and specific code definition. The term “US Trade or Business” can be seen as: selling products in the United States (either directly or through an agent), soliciting orders for merchandise from the US and those goods out of the US, providing personal services in the United States, manufacturing, maintaining a retail store, and maintaining corporate offices in the United States.Conversely, there are highly specific and complex definitions for “effectively connected” involving the “force of attraction” and “asset-use” rules, as well as “business-activities” tests.

Generally and for simplistic explanation, an NRA is “effectively connected” if he or she is engaged as a General or limited partner in a U.S. trade or business. Similarly, if the estate or trust is so engaged in trade or business then any beneficiary of said trust or estate is also engaged

For real estate, the nature of the rental income becomes the critical concern. The Real Estate becomes passive if it is generated by a triple-net lease or from lease of unimproved land. When held in this manner and considered passive the rental income is taxed on a gross basis, at a flat rate of 30 percent with applicable withholding and no deductions.

Investors should consider electing to treat their passive real property income, as income from a U.S. trade or business, because the nature of this type of holding and loss of deduction inherent therein is often tax prohibited. However, the election can only be made if the property is generating income.

If the NRA owns or invests in or owns unimproved land that will be developed in the future, he or she should consider leasing the land. This is a great way to generate income. Investment in income-generating allows the NRA the ability to claim deductions from the property and generate a loss carry-forward that will offset income in future years.

There are many tools we can use to assist our NRA clients in avoiding taxation on Real Estate income property, one of which is ‘portfolio interest’, which is payable only on a debt instrument and not subject to taxation or withholding. There are several ways to fit within the confines of these ‘portfolio interest’ rules. NRAs can participate in the practice of lending through equity participation loans or loans with equity kickers. An equity kicker is like a loan that allows the lender to participate in equity appreciation. Allowing the lender to convert debt into equity in the form of a conversion option is one way that this can be accomplished as these provisions usually increase interest rates on a contingent basis to mimic equity participation.

There are two levels of tax applicable to a foreign individual or a foreign corporation who owns a U.S. corporation.

The U.S. corporation will be subject subjected to a 30 percent withholding tax on its profits, when the income is not re-invested in the United States and there will be a tax on dividends paid to the foreign shareholders as well. When the U.S. business is owned by a foreign corporation, whether directly or through a disregarded entity, or through a pass-through entity. The branch profits tax replicates the double tax.

The U.S. has treaties covering the ‘branch profits tax’ with most of the European nations, reducing the tax to between 5 and 10 percent. The 30 percent tax is onerous, as it applies to a “dividend equivalent amount,” which is the corporation’s effectively connected earnings and profits for the year, less investments the corporation makes in its U.S. assets (money and adjusted bases of property connected with the conduct of a U.S. trade or business). The tax is imposed even if there is no distribution.

Foreign corporations are taxed on their effectively connected income and on any deemed dividends, which are any profits not reinvested in the United State under the branch profits tax.

The rules applicable to the tax on the disposition of real estate are found in a separate regime known as the Foreign Investment in Real Property Tax Act of 1980 (FIRPTA).

Generally, FIRTPA taxes an NRAs holdings of U.S. real property interest (USRPI) as if he or she were engaged in a U.S. trade or business. As mentioned earlier, this means that the traditional income tax rules that apply to U.S. taxpayers will also apply to the NRA. Obligation to withhold 10 percent of the amount realized on any disposition falls on purchasers who acquire a USRPI from an NRA.

Ownership and interests of Real Estate Property include: fee ownership, co-ownership, leasehold, timeshare, a life estate, a remainder, a reversion or a right to participate in the appreciation of real property or in the profits from real property. For purposes of definition interest in real property would include any ownership of personal property used to exploit natural resources, land, buildings, mineral deposits, crops, fixtures, operations to construct improvements, the operation of a lodging facility, or providing a furnished office to a tenant (including movable walls or furnishings) as well as Improvements, leaseholds, or options to acquire any of the above.

There are several ways in which a partnership interest is treated as a USRPI: A domestic corporation will be treated as a U.S. real property holding corporation (USRPHC) if USRPIs are equal to or exceed 50 percent of the sum of the corporation’s assets. OR when 50 percent or more of the value of the gross partnership assets consists of USRPIs – Or when 50 percent or more of the value of partnership gross assets consist of USRPIs plus cash and cash equivalents. The disposition of partnership interest will be subject to FIRPTA. To the extent that such partnership continues to own USRPIs they will remain subject to this withholding.

The good news is that disposition of an interest in a USRPHC is subject to the FIRPTA tax and withholding but is not subject to state income tax. There is an obvious benefit when compared with the disposition of a USRPI owned directly. USRPI which are owned directly are subject to the lower federal capital gains rate as well as state income tax. If, however on the date of the disposition the corporation had no USRPIs and the totality of the gain was fully recognized (no installment sales or exchanges) on the sale of any USRPIs sold within the past five years Then this disposition cannot be subject to these rules.

Any USRPI sold by an NRA (individual or corporation) will be subject to 10 percent withholding of the amount realized. Withholding applies even if the property is sold at a loss.

The purchaser must report the withholding and pay over the tax, using Form 8288 within 20 days of the purchase. This is to be duly noted because if the purchaser fails to collect the withholding tax from the foreigner, the purchaser will be liable for not only the tax, but also any applicable penalties and interest. The withheld taxes are later credited against the total tax liability of the foreigner.

Instances wherein withholding is not required, are the following:

The seller provides a certificate of non-foreign status. Property acquired by the purchaser is not a USRPI. The transferred property is stock of a domestic corporation and the corporation provides a certificate that it is not a USRPHC.

The USRPI acquired will be used by the purchaser as a residence and the amount realized by the foreigner on the disposition is $300,000 or less. The disposition is not subject to tax, or the amount realized by the foreigner on the disposition is zero.

Estate and Gift Tax: In determining who is an NRA and who is excluded the test is completely different for estate tax purposes. The focus of inquiry will centers around the decedent’s residence. This test is very subjective and focuses primarily on intent.The test considers factors from across the board, such as how long the NRA has been in the United States, how often he or she travels as well as the size, and cost of home in the United States. The test will also look at the location of NRA’s family, their participation in community activities, participation in U.S. business and ownership of assets in the United States. Voting is also taken into consideration.

A foreigner can be a U.S. resident for income tax purposes but not be domiciled for estate tax purposes. An NRA, whether a nonresident alien or non-domiciliary, will be subject to a different transfer taxes (estate and gift taxes) than a U.S. taxpayer. Only the gross part of the NRA’s Estate that at the time of death is situated in the United States will be taxed with the estate tax. Although the rate of NRA’s estate tax will be the same as that imposed on U.S. citizens and resident aliens, the unified credit is only $13,000 (equivalent to about $60,000 of property value).

These may be ameliorated by any existing estate tax treaty. European countries, Australia, and Japan enjoys these treaties, The U.S. does not maintain as many estate tax treaties as income tax treaties.

The IRC defines the following property as situated in the United States: A) Shares of stock of a U.S. corporation. B) Revocable transfers or transfers within three years of death of U.S. property or transfers with a retained interest (described in IRC Sections 2035 to 2038). C) Debt issued by a U.S. person or a governmental entity within the United States (e.g., municipal bonds).

Real estate in the United States is considered U.S. property when it is physical personal property such as works of art, furniture, cars, and currency. Debt, however is ignored if it is recourse debt, but gross value is included, not just equity. U.S.-situs property is also a US property if it is a beneficial interest in a trust holding. Life insurance is NOT included as U.S.-situs property.

The estate tax returns must disclose all of the NRA’s worldwide assets, in order to determine the ratio that the U.S. assets bear to non-U.S. assets. The gross estate is reduced by various deductions relating to the U.S.-situs property. This ratio determines the percentage of allowable deductions that may be claimed against the gross estate.

As mentioned earlier, when real estate is subject to a recourse mortgage, the gross value of the real estate is included, offset by the mortgage debt. This distinction is very relevant for NRAs whose debts are subject to apportionment between U.S. and non-U.S. assets and therefore not fully deductible.

Accurate planning is crucial. Let us illustrate: An NRA can own US property through a foreign corporation and this property is not included in the NRA’s estate. This means that the US Real property owned by the NRA has now effectively been converted into a non-U.S. intangible asset.

And with Real Estate that was not initially acquired through a foreign corporation, you can still avoid future taxation to the estate by paying an income tax today on the transfer of the real estate to a foreign corporation (usually treated as a sale).

An NRA donor is not subject to U.S. gift taxes on any gifts of non-U.S. situs property gifted to any person, including U.S. citizens and residents. Gift taxes are imposed on the donor. Gifts from an NRA that are in excess of $100,000 must reported on Form 3520.46 by citizens and residents, however, Gifts of U.S.-situs assets are subject to gift taxes, with the exception of intangibles, which are not taxable. If it is physically located in the United States tangible personal property and real property is sited within the United States. The lifetime unified credit is not available to NRA donors, but NRA donors are allowed the same annual gift tax exclusion as other taxpayers. NRA’s are also subject to the same rate-schedule for gift taxes.

The primary thrust of estate tax planning for NRAs is through the use of; the following: Foreign corporations to own U.S. assets, and the gift tax exemption for intangibles to remove assets from the United States. It is very important that the corporation have a business purpose and activity, lest it be deemed a sham designed to avoid U.S. estate taxes. If the NRA dies owning shares of stock in a foreign corporation, the shares are not included in the NRA’s estate, regardless of the situs of the corporation’s assets.

Let us break this down into one easy to read and understand paragraph:

In a nutshell, shares in U.S. corporations and interests in partnerships or LLCs are intangibles and the gift of an intangible, wherever situated, by an NRA is not subject to gift tax. Consequently, real estate owned by the NRA through a U.S. corporation, partnership, or LLC may be removed from the NRA’s U.S. estate by gifting entity interests to foreign relatives.

Ownership Structures: Here we discuss the ownership architectures under which NRA’s can acquire Real Estate. The NRA’s personal goals and priorities of course dictate the type of architecture that will be used. There are advantages and disadvantages to each of these alternatives. Direct investment for example, (real estate owned by the NRA) is simple and is subject to only one level of tax on the disposition. The sale is taxed at a 15 percent rate If the real estate is held for one year. There are many disadvantages to the direct investment approach, a few of which are: no privacy, no liability protection, the obligation to file U.S. income tax returns, and if the NRA dies while owning the property, his or her estate is subject to U.S. estate taxes.

When an NRA acquires the real estate through an LLC or an LP, this is considered an LLC or a limited partnership structure. This structure provides the NRA with protection of privacy and liability and allows for lifetime transfers that escape the gift tax. The obligation to file U.S. income tax returns and the possibility for U.S. estate tax on death remain, however.

Ownership of real estate through a domestic corporation, will afford privacy and liability protection, obviate the foreigner’s need to file individual U.S. income tax returns and allow lifetime gift tax-free transfers. *this refers to a C corporation, since a foreign shareholder precludes an S corporation.

Ownership of stock will not trigger a return filing obligation, unlike engaging in a U.S. trade or business which requires a U.S. tax return

Ownership of real estate through a domestic corporation has three disadvantages: Federal and state corporate income tax at the corporate level will add a second layer of tax. Dividends from the domestic corporation to its foreign shareholder will be subject to 30 percent withholding. Shares of the domestic corporation will be included in the U.S. estate of the foreign shareholder.

Furthermore, the foreign shareholder will be subject to FIRPTA, because the corporation will be treated as a USRPHC (upon the disposition of the stock in the corporation). The purchaser of the shares is then required the file a U.S. income tax return with 10 percent tax withholding. Actual ownership of the real estate may be held by the U.S. corporation directly, or by a disregarded entity owned by the corporation or through a U.S. partnership. An LLC that chooses to be taxed as a corporation can also be the corporation.

There are several advantages to foreign corporation ownership:

Liability protection– There is no U.S. income tax or filing requirement for the foreign shareholder. Shares in the foreign corporation are non-U.S. assets not included in the U.S. estate.

Dividends are not subject to U.S. withholding. There is no tax or filing requirement on the disposition of the stock. There is no gift tax on the transfer of those shares of stock.

Disadvantages of using the foreign corporation: A) just like with the domestic corporation, there will be corporate level taxes, because the foreign corporation will be deemed engaged in a U.S. trade or business. B) Possibly the largest disadvantage of ownership of U.S. real estate through a foreign corporation would be that the foreign corporation will be subject to the branch profits tax.

One of the most advantageous structure for ownership of U.S. real estate by NRAs is a hybrid foreign and U.S. corporation. It runs like this: The NRA owns a foreign corporation that in turn owns a U.S. LLC taxed as a corporation. The benefits to this type of structure is paramount to a good tax shield and offers: privacy and liability protection, escaping U.S. individual income tax filing requirements and it also avoids U.S. estate taxes. On top of that it allows for gift tax-free lifetime transfers, and avoids the branch profits tax.

The beauty and benefit of this is that the timing and the amount of this dividend is within the NRA’s control even though distributions from the U.S. subsidiary to the foreign parent are subject to the 30 percent FDAP withholding.

There are many things to consider and several structures available to limit tax liability, preserve and protect anonymity and increase profits of US Real Estate investments by foreign investors. We must keep in mind that each investment presents its own challenges and no structure is perfect. Advantages and disadvantages abound which will require a tailored analysis in light of the individual or group objectives.

It’s really about implementing a structure which will successfully carry the NRA through to his or her END GAME, with the utmost protection from liability and the maximum return on investment.

What Defines a Serious Business Buyer?

Individuals who desire to purchase an established small business must be well prepared before the search process begins. Well managed, profitable and successful businesses are in short supply and very high demand. Business owners and business brokers alike have little patience and interest in wasting their valuable time with buyers who have not taken the appropriate steps to demonstrate that they are fully prepared to acquire a business.

How does a buyer define themselves as being a “serious” candidate and not a casual, curious, tire kicker? The goal of this article is to outline the steps that a business buyer should take in advance so that they can stand out and be recognized as a serious and credible buyer?

Let’s start with a few examples demonstrating who is NOT a serious candidate.

  • I want to buy a small business in the area but am not sure what type yet. Can you send me information on three of the businesses you have listed for sale – the industrial manufacturing business, the durable medical equipment company, and the online retailer?
  • I am still working at my current job but am contemplating leaving the firm and purchase a business within the next couple of years.
  • My background is entirely in the printing industry but I want to make a change and thought about buying a wholesale chemical products company.
  • I have a little money saved up but need to get a loan to purchase a business. I am not sure how much I would qualify for or how large a business I could afford.
  • I want to buy a business but will need the seller to finance the purchase. I will pay them back entirely out of the future cash flow of the company.

Preparing a business for sale takes considerable work on behalf of the business broker and seller. Just a few of the steps include valuing the business, preparing the Confidential Business Review (executive summary), and organizing all of the corporate, financial, and tax documents. For a buyer to be recognized as a serious candidate, they too have work that needs to be accomplished prior to being in a position to venture in the marketplace and begin assessing business opportunities.

So, what makes a buyer a serious candidate?

  1. Personal profile and resume

Construct a detailed personal profile and biography. Not only will the seller need to see this document but any bank requires this as well. A resume is just a starting place. The document should cover the following questions:

  • What is your education and work experience?
  • Who will be buying the business? Just you, you and your spouse, a partner, an investor?
  • Why you are interested in buying a business?
  • What is your investment criteria?
  • What transferrable skills do you possess that qualify you for managing the business?
  • How will you be financing the acquisition? If bank funding will be utilized, a prequalification letter should be included. How much money do you have for a down payment?
  • What is your timetable to complete the acquisition?
  • Who is your advisory team? Which attorney will be drafting the Asset Purchase Agreement and facilitating the closing? Do they have experience with business acquisitions?
  • What are the contingencies for the business acquisition? Do you have to leave a current job? Do you have to secure funding from a partner or a bank? Do you have to relocate and sell a house?

How will the buyer be funding the purchase?

Buyers should be knowledgeable about the size of business they are qualified to purchase. Will the buyer be utilizing personal funds for the transaction or will third party financing be used? Most acquisitions (without real estate) require 25% of the purchase price as a down payment. (Funds needed for closing costs and working capital are often provided as part of the loan package and can be financed.)

Buying and selling a small business requires a two way exchange of information. The buyer should be ready to disclose the amount they can invest and have a detailed plan on how they will finance the entire transaction. The idea that the seller is going to finance the sale is not a plan and this type of buyer will be quickly dismissed. Business brokers can be a great source for recommendations on which lenders are appropriate and likely to finance the business they represent.

The buyer should have a current personal financial statement prepared. If bank financing will be utilized, the buyer should be clear on their borrowing capacity and have a lender prequalification letter in hand (a banker can prepare this in a matter of hours). Don’t expect the broker or business seller to provide complete access to sensitive and confidential business documents without receiving assurances that the buyer has the appropriate resources to either purchase the business outright or obtain a business acquisition loan.

What industry experience or transferrable skills does the buyer have?

The optimal situation is when the prospective buyer has direct industry experience. This is especially pertinent when bank financing will be involved. Obviously, every business is different and each will have unique requirements for successful ownership. For some businesses, the buyer may be able to satisfy this requirement by having related practical work experience or transferrable skills. Certain businesses may require licenses, certifications, or a particular expertise to operate. If the buyer does not possess these it will be critical to confirm that there is a manager or key employee in place that has these qualifications. In other situations, the business may be very specialized and a buyer lacking a critical credential will be disqualified from obtaining bank funding. These issues should be discussed early in the process as the business broker will need to determine if you are managerially qualified to operate the business.

What is the type of business the buyer is seeking and why?

A serious buyer has developed a detailed and concise “investment criteria” for the business they seek to acquire. Several of investment criteria attributes will include the type of business, the industry, the geographic location, the size of business, and the price/value of the enterprise.

Serious buyers will focus on enterprises which are suited to their background and qualifications. A buyer who inquires about an industrial packaging distributer, a restaurant, and a custom millwork company will not be treated as a serious candidate. Having an investment criteria that relates only to “profitable businesses” or “those businesses which generate a minimum of $150,000 in cash flow” without regard to the business type, industry served, geographic location, and size is a clear red flag that the candidate has not put the proper time into honing their acquisition objective.

  1. Realistic expectations.

Successful entrepreneurs recognize that there is no such thing as a perfect company. Business ownership involves taking on some level of risk and acquiring a business is no different. Buyers who seek to purchase a business 100% free of any flaws will be searching for a very long time. There will be areas of improvement for every business and the buyer will have to make a decision as to which negative elements are acceptable and which ones are not. Buyers who are too risk adverse may just not be cut out for small business ownership and being an employee is a more suitable career objective.

Additionally, buyers often fail to realize that there is a limited supply of great businesses for sale… those that have year over year revenue growth, excellent profits, and bright prospects for continued advancement. Many of these businesses sell for the full listing price and for these types of successful businesses, buyers should be careful when submitting an offer less than 90% of what it is listed at. Most of the time there are a multiple buyers who are evaluating the business and those candidates who submit, either a low-ball offer or an offer with unrealistic terms attached, will be wasting the valuable time of all parties involved not to mention possibly burning a bridge with the business seller and eliminating themselves from consideration.

  1. Ability to react quickly

A serious buyer is well organized, has done their research, and knows what they want and what they can afford. They are decisive and capable of moving through the process in a timely and methodical fashion. If a partner, spouse, or investor will be involved in the acquisition, these individuals are consulted with in advance and are in agreement with the defined objectives. If advisors will be assisting in the evaluation, the advisors are aware of the acquisition search and are on standby for their assignment.

A serious buyer should have an understanding of how businesses are valued in addition to a comprehension of the typical steps in the acquisition process. They are prepared with a list of well thought and detailed questions designed with the objective of determining if the opportunity meets their investment criteria. A serious buyer recognizes that a quick no is far better than a slow no and they tackle those gating issues from the outset that would disqualify the business from being acquired. Once the opportunity is qualified a serious buyer is in a position to make a ‘realistic offer’ and provide a letter of intent or terms sheet. A professional support team has been identified for the drafting the Asset Purchase Agreement and facilitating the transaction closing. Lastly, a serious buyer will understand the due diligence process and already have their checklist in place. Funding for the acquisition has been planned and money for an earnest money deposit is liquid and available.

  1. Professional Communication

A serious buyer is honest, direct, and forthcoming. Now is not the time to be cagey, cute, or evasive. You want to convey at the earliest opportunity your investment criteria, time table, financial wherewithal and reasons for pursuing the acquisition. This type of communication will build a foundation of trust and honest dialog in the weeks ahead. One viable solution for a serious buyer is to retain a business broker to assist with the search and business qualification. This approach provides far better results than a haphazard approach of firing off requests for information on any business posted on-line that catches their fancy. The business-for-sale industry is not the real estate industry. There are no open houses. This is a highly confidential process where professionals are involved and retained to protect the sensitivity of the business for sale data. A buy-side broker is paid by the prospective buyer for the time, energy, and work that is generated on their behalf. They are compensated to produce results.

There is nothing worse than going through the myriad of steps in preparing a business for sale to find a buyer that is not properly prepared nor has gone through the logical thought, planning, and preparation steps for acquiring a business. We have outlined the information that a business broker and seller needs when qualifying a candidate as a serious buyer. In order to close a transaction all of this information is required so it best that the buyer come prepared with this data at the outset. Few parties in this arena, want to have their time wasted or patience tested. The bottom line is that when you find the right business you are in a position to act and make a realistic offer. Successful businesses are few and far between and often receive multiple offers. Why should the business broker and seller invest time in you?