Guest Post by Gabrielle Lessard, Esq.

The recently enacted health insurance reform legislation includes a tax credit that helps many small businesses provide coverage for their employees.  Many tax-exempt non-profit organizations can also receive the health care tax credit, although at a reduced level.

To qualify, small businesses and exempt organizations must:

• Have fewer than  25 full-time equivalent (FTE) employees
• Pay average annual wages below $50,000, and
• Cover at least 50% of their workers’ health insurance premium costs.

Small businesses can receive a credit up to 35% of their 2010 employee premium costs.  This amount increases to 50% in 2014.  The non-profit credit starts at 25% in 2010, increasing to 35% in 2014.

The credit is effective January 1, 2010.  Eligible small businesses can claim the credit as part of the general business credit starting with the 2010 income tax return they file in 2011. For tax-exempt employers, the IRS will provide further information on how to claim the credit.

For more information click here.

When a group of people forms a cooperative to work together, they have to decide whether to treat themselves as employees of the co-op or as producers that contract with the co-op to provide products or services through the co-op.

A prototypical producer co-op is made up of farmers that each work independently on their own farms.  They each contract with the co-op to provide a certain amount of produce that the co-op will market for them.  Patronage dividends are paid based on the amount of produce each member markets through the co-op.

Imagine a different scenario: a group of bookkeepers gets together to form a bookkeepers’ co-op.  Should the co-op be a worker co-op or a producer co-op?  Note that in California and in many other states, there is not a separate statute for a worker co-op versus a producer co-op.  So the co-op would form under the same statute in either case.  The important question is whether the bookkeepers would treat themselves as employees or independent contractors with respect to the co-op.

Co-op members will often prefer to treat themselves as independent contractors to avoid the compliance issues that come with having employees.  Whether they are co-op members or not, (in most cases) employees must be paid minimum wage, have workers compensation insurance, have employment taxes withheld from their pay, etc.  But co-ops should be careful about choosing this route.  Before treating co-op members as independent contractors, the co-op should consider whether the members comfortably fall within the IRS’s definition of an independent contractor (for example, how much control does the co-op have over the day-to-day activities of the members? are the members free to work for others? do the members purchase their own supplies and equipment? etc.).

The IRS, as well as other regulatory bodies, is very concerned about workers being misclassified as independent contractors.  The penalties for misclassification can be harsh.  So do some careful thinking before treating co-op members as independent contractors!

Another thing to be aware of is that a corporate officer must always be treated as an employee and not an independent contractor.  So if a co-op member is paid for serving as secretary, treasurer, or some other officer position, those payments must be treated as wages, subject to withholding of employment tax.

I’ve been telling people that as long as a co-op’s members are all in the state where the co-op is located, does most of its business, and is incorporated, there is no need to worry about federal securities law which does not contain an exemption for non-agricultural co-ops.  If you offer memberships in more than one state, I say, you would have to register the offering with the Securities and Exchange Commission.

After I say that, the inevitable response is always “then how does REI do it?”  REI is a cooperative and sells memberships all over the country.

Great question!  I called REI’s corporate lawyer to ask why REI does not consider its memberships to be securities.

He said REI’s memberships are very far from the definition of a security because people don’t join REI to get financial returns.  While REI members do get patronage refunds each year, these are more like a discount on what they buy than a financial return – kind of like the discounts that people pay to get when they join Costco.

REI is so confident in this opinion that it has never requested a no action letter from the SEC.

It also helps that REI memberships are non-transferable and cannot appreciate in value.  It doesn’t hurt that the price of a membership is so low.

Last year, Washington state adopted the community solar project investment cost recovery incentive to encourage communities to develop solar projects.  Unfortunately, the way the legislation was originally written, there could be only one incentive per investor so a group of investors could not pool their resources to build solar projects and each receive the incentive payment.  Recognizing this problem, the legislature planned to allow the incentive to be passed through to individual owners of an LLC that developed a solar project.  Stanley Florek pointed out that cooperatives should also be allowed to receive these passed through incentives.  The legislature listened to him and added cooperatives to the list of types of entities eligible for this pass through treatment.

One benefit of allowing cooperatives to participate is that there is a state securities registration exemption for Washington cooperatives.  So promoters of community energy projects can use the co-op structure to bring in a diverse group of investors without having to register a public offering.

Click here for the bill.

Great job Stanley!

By Cecily Jackson and Jenny Kassan

In a recent Technical Advice Memorandum (TAM), the IRS determined that a major source of revenue for a 501(c)(6) trade association was unrelated business income and therefore taxable.

The trade association’s purpose was to promote a particular sport within a region.  Individuals can only play the sport at sports facilities that charge a fee to play.  The trade association sold discount coupons for use of such facilities.

In the TAM, the IRS listed the requirements for a Section 501(c)(6) organization:

(1)    It must be an association of persons having a common business interest,

(2)    Its purpose must be to promote that common business interest,

(3)    It must not be organized for profit,

(4)    It should not be engaged in a regular business of a kind ordinarily conducted for a profit,

(5)    Its activities should be directed toward the improvement of business conditions of one or more lines of business as opposed to the performance of particular services for individual persons, and

(6)    Its net earnings, if any, must not inure to the benefit of any private shareholder or individual.

The Internal Revenue Code imposes a tax on income to a nonprofit organization derived from any unrelated trade or business regularly carried on.  An unrelated trade or business is any trade or business which is not substantially related to the organization’s exempt purposes.

The trade association argued that the discount coupon program is substantially related to its exempt purposes because it encourages more people to engage in the sport.

The IRS disagreed.  The question turned on whether the sale of coupons promotes general interest and involvement in the sport or if it constitutes the performance of particular services for individual persons or businesses.  The IRS concluded that the sale of coupons only benefited those facilities that chose to participate and not the sport as a whole and therefore the sale of coupons was basically an advertising service for individual businesses.

The IRS states, “Advertising campaigns . . . that name and promote specific businesses rather than the industry as a whole constitute the performance of particular services for individual persons” which is an unrelated trade or business.

We know of many 501(c)(6) organizations that promote their members by maintaining business directories, spotlighting their members on their web sites, etc.  These organizations need to be careful that their activities don’t start to look like the sale of advertising (or else pay tax on the revenue associated with those activities).  (Note that occasional highlighting of members such as for a special event is not a problem because the tax on unrelated business income only applies to a trade or business that is regularly carried on.)

The following are some examples of activities that have been found to be taxable as unrelated business income to a 501(c)(6):

• Advertising of products and services in an association journal, even if those products and services are related to the purpose of the organizations
• Promotions that mention particular businesses
• Promotion of members to the exclusion of non-members in the same industry when members and non-members meet similar standards
• Fee-based services for members and/or non-members that are similar to what might be provided by a commercial business
• Providing discounted parking for patrons of only certain businesses in a downtown area.

The following are some examples of activities that have been found to be substantially related and therefore not taxable as unrelated business income:

• Publication of educational information that incidentally promotes specific businesses
• Providing discounted parking for all visitors to a downtown area
• Sponsorship of tournaments to promote interest in a sport and sale of broadcasting rights to those tournaments
• Promotion of an entire industry or line of business such as Washington apples or the use of plywood as a building material.

Note that a nonprofit can lose its exempt status if a significant amount of its revenue is derived from and/or a significant amount of its resources is devoted to an unrelated activity.

If you’ve read our blog at all, you know that we are constantly harping about securities!  I have been asked many times whether something that someone is offering is a security.  This post offers some guidance.

A security is defined under federal law as

“any note, stock, treasury stock, security future, bond, debenture, evidence of indebtedness, certificate of interest or participation in any profit-sharing agreement, collateral-trust certificate, preorganization certificate or subscription, transferable share, investment contract, voting-trust certificate, certificate of deposit for a security, fractional undivided interest in oil, gas, or other mineral rights, any put, call, straddle, option, or privilege on any security, certificate of deposit, or group or index of securities (including any interest therein or based on the value thereof), or any put, call, straddle, option, or privilege entered into on a national securities exchange relating to foreign currency, or, in general, any interest or instrument commonly known as a “security”, or any certificate of interest or participation in, temporary or interim certificate for, receipt for, guarantee of, or warrant or right to subscribe to or purchase, any of the foregoing.” 15 U.S.C. 77b(a)(1).

The leading case on the definition of a security is federal Supreme Court case SEC v. W.J. Howey Co. (1946).  Under the Howey test, a security is “a contract, transaction or scheme whereby a person invests his money in a common enterprise and is led to expect profits solely from the efforts of the promoter or a third party.”

In Howey, the “scheme” in question was the sale of land containing fruit trees as well as “service contracts” to cultivate and market the crops, with an allocation of the net profits going to the purchaser.

The Howey Court noted that its definition of a security “embodies a flexible rather than a static principle, one that is capable of adaptation to meet the countless and variable schemes devised by those who seek the use of the money of others on the promise of profits.”

The ninth circuit court of appeals distilled Howey’s definition into a three-part test: “(1) an investment of money (2) in a common enterprise (3) with an expectation of profits produced by the efforts of others.” SEC v. Rubera (2003).

The courts have rejected attempts to narrow the definition of a security.  As one opinion put it, “[I]n searching for the meaning and scope of the word ‘security’ . . . form should be disregarded for substance and the emphasis should be on economic reality.”

The “investment of money” prong of the Howey test “requires that the investor ‘commit his assets to the enterprise in such a manner as to subject himself to financial loss.’”

The focus of the inquiry is on what the purchasers were offered or promised.  “The test [for determining whether an instrument is a security] . . . is what character the instrument is given in commerce by the terms of the offer, the plan of distribution, and the economic inducements held out to the prospect.”

What does it mean to create an expectation of profits?  The Supreme Court defined profits as “either capital appreciation resulting from the development of the initial investment . . . or a participation in earnings resulting from the use of investors’ funds.”

The promised return may be fixed or variable and may be marketed as low-risk or “guaranteed.”

Courts have frequently examined the promotional materials associated with an instrument in determining whether it is a security.  If the materials promise things like great returns or guaranteed income, the court will almost certainly find the instrument to be a security, and therefore subject to federal securities regulations.

A company that wants to sell securities to California residents must complete a qualification – an extensive process similar to federal registration.

There are some exemptions to this requirement.  One of the most commonly used is the 25102(f) exemption (named, creatively enough, after the section of the code where it is found).

The following are the requirements for the offer and sale of a security to be eligible for the 25102(f) exemption:

• The offering can be made to an unlimited number of Excluded Purchasers
  • Excluded Purchasers include banks, officers and directors of the company, a person that works for the company that has executive level duties and authority, and accredited investors

• The offering can be made to a maximum of 35 purchasers who do not meet the definition of an Excluded Purchaser, if they meet one of the following requirements
  • Have a preexisting personal or business relationship with the company and/or its principals; or
  • Have the ability to protect their interests due to their financial experience or the fact that they have experienced professional advisors

• All purchasers must state that they are purchasing for their own account and not for re-sale
• The offering of the security may not be advertised to the public

The term “preexisting personal or business relationship” includes any relationship consisting of personal or business contacts of a nature and duration such as would enable a reasonably prudent purchaser to be aware of the character, business acumen and general business and financial circumstances of the person with whom such relationship exists.

In addition, the company must make a simple filing with the Department of Corporations.

This is a very basic summary — please do further research or work with a lawyer before attempting to use this exemption!

Note also that the company still must qualify for a federal exemption from securities registration – see our earlier blog post on federal exemptions.

When you are located in California and you buy something from outside of California (for example via the internet) that would have been subject to sales tax if purchased within California, you may think – cool – I avoided California sales tax!  No such luck!  Such purchases are subject to California “use tax” – which is the same rate as what sales tax would have been if you had bought the thing in California.

Since many of us do not pay this tax, the state legislature adopted Assembly Bill x4-18 (Stats. 2009, Ch. 16) which requires “qualified purchasers” to register with the BOE and report and pay use tax.

A “qualified purchaser” means a business that meets all of the following conditions:

• Receives at least $100,000 in gross receipts from business operations per calendar year.
• Not required to hold a seller’s permit or certificate of registration for use tax.
• Not a holder of a use tax direct payment permit.
• Not otherwise registered with the BOE to report use tax.

A qualified purchaser may register for a use tax account by completing the BOE-404-A, Use Tax Registration, and mailing it to the BOE,

Board of Equalization
Tax Source Group, MIC: 007
PO Box 942879
Sacramento, Ca 94279-0007

There is no fee to register.

For more information, click here.

For taxable years beginning on or after January 1, 2009, the California LLC gross receipts fee must be estimated and paid by the 15th day of the 6th month of the current taxable year. LLCs will use new form FTB 3536, Estimated Fee for LLCs, to remit the estimated fee. A new penalty in the amount of 10% of the underpayment of the estimated fee will apply if the estimated LLC fee is underpaid. LLCs will also use form FTB 3536 to pay by the due date of the LLC’s return, any amount of LLC fee due which was not paid as an estimated fee payment. If the taxable year of the LLC ends prior to the 15th day of the 6th month of the taxable year, no estimated fee payment is due, and the LLC fee is due on the due date of the LLC’s return.

Equal Exchange is a worker-owned cooperative business based in Massachusetts that has created an amazing model for fulfilling its mission while simultaneously making money for its investors.

Equal Exchange purchases coffee and cacao from farmer cooperatives throughout the world and processes it into products that it sells to retailers.  All products meet rigorous standards for fairness and sustainability.

All of the employees of Equal Exchange (with the exception of new employees that have not completed an initial probationary period) own voting shares in the business.  Only employees may own voting shares.  The employees elect the board, with each employee having one vote.

To become a worker-owner at Equal Exchange, you are required to buy your ownership share, which currently costs $3,250 (the amount is adjusted for inflation each year).  To ensure that all employees can afford to buy their share, Equal Exchange offers a four-year no-interest loan for share purchase.  When employees leave, they must sell their share back to the cooperative.

In addition to voting rights, the employees are entitled to a share of the profits.  At the end of each year, 40% of the after-tax profits (or losses) are allocated to the workers.  Last year, each worker’s share was approximately $5,000.  The remaining profits stay in the company as retained earnings.

The company has been profitable every year but one for the last twenty years.

When the company needed to bring in outside capital, it created a second class of shares – a non-voting share.  These shares were originally priced at $25 (the price was increased to $27.50 after demonstrating a track record for paying reasonable returns).  After an initial offering to friends and family, the company sought out accredited investors to purchase shares in private offerings.

In exchange for their investment, the non-voting shareholders receive an annual preferred dividend (paid before the workers receive their patronage dividend).  The board decides each year how much the dividend will be, with a target of 5%.  Most investors choose to reinvest their dividend in non-voting shares.  The investors may redeem their shares after five years.  The shares are non-transferrable.

The following chart shows the performance of the Equal Exchange non-voting shares compared to the S&P 500 over the last 10 years.

Equal Exchange set up its financial model so that, while workers and investors can benefit from company profits, no one can benefit from increases in share prices.  This brilliant innovation ensures that none of the company’s stakeholders will ever be tempted to sell out to Starbucks or Hersheys.  The way this was accomplished was to prohibit the transfer of shares and to include a “sellout protection clause” in the company’s formation documents.  This clause requires that if the company is ever sold, all of the capital gains will be donated to fair trade organizations.  The workers and investors cannot receive capital gains on sale.

Many cooperatives have a great deal of difficulty raising outside capital because few investors are willing to purchase non-voting shares.  Yet Equal Exchange has raised over $8 million by selling non-voting shares.  How did they do it?  A number of mechanisms give non-voting investors comfort that the interests of the voting shareholders (the employees) are aligned with their interests.

These mechanisms include the following:

• The highest paid employee at Equal Exchange can never be paid more than four times what the lowest paid employee receives – this ensures that Equal Exchange’s profits will not be diverted to pay outrageous salaries
• The worker-owners receive half of their patronage dividends in non-voting shares so they have an interest in paying a fair return to the non-voting investors
• The workers are required to invest their own capital in the company and share in profits as well as losses, giving them a meaningful stake in the success of the company
• The workers spend time visiting the farmers and learning about how the company operates, putting them in the best position to make decisions about how the company is run.

The only thing that was missing from the model was a way for the public to invest in Equal Exchange.  The cost to sell shares to the public is prohibitive (as discussed at length in previous blog posts).  To remedy this problem, Equal Exchange partnered with a bank to create a company-specific certificate of deposit.  Investments in the CD go to a line of credit that can be used by Equal Exchange as working capital.

For more information, see Equal Exchange’s web site (http://www.equalexchange.coop/index.php) and blog (http://eeinvest.wordpress.com/).