Avoiding simple mistakes with the IC-DISC can mean the difference between maximizing tax benefits and leaving money on the table.
In this episode of The IC-DISC Show, I sit down with Brian Schwam, National Managing Director of International Tax Services at WTP Advisors, to talk about the most common IC-DISC misconceptions that trip up practitioners and the underutilized opportunities many businesses are missing.
Brian walks through the critical timing rules that confuse even experienced CPAs, including the 60-day and 90-day payment requirements that many practitioners misapply. He explains how the reasonable estimate safe harbor actually works and why paying the minimum amount can accidentally cap your commission at twice that figure. We cover the ordering rules for distributions, the often-misunderstood $10 million threshold, and why the transactional calculation method isn't nearly as impossible as people think. Brian also clarifies that IC-DISC dividends are subject to the net investment income tax, despite what some practitioners might believe.
The conversation shifts to creative structures most companies never consider. Brian explains how multiple DISCs can fund executive bonuses at qualified dividend rates instead of ordinary income rates, saving both employment taxes and up to 17% in federal tax for recipients. He describes evergreen dividend resolutions that eliminate the stress of year-end cash movements and shared-DISC structures that make the strategy economical for smaller exporters with under $3 million in sales. These approaches work for both flow-through entities and C corporations looking to avoid double taxation.
After more than three decades in international tax, Brian brings clarity to a strategy that looks deceptively simple on paper but contains hidden complexity at every turn. This episode delivers practical guidance you can use immediately, whether you're a practitioner helping clients or a business owner evaluating your own structure.
SHOW HIGHLIGHTS
- Paying the minimum 50% under the 60-day rule accidentally caps your total IC-DISC commission at twice that amount, limiting flexibility.
- Companies with export sales over $10 million can still use an IC-DISC—the cap only limits income deferral, not eligibility.
- Multiple DISCs can fund executive bonuses at qualified dividend rates, saving up to 17% in federal tax versus ordinary income.
- The transactional calculation method isn't impossible—most companies in 2025 can pull the data needed to maximize their IC-DISC benefit.
- Evergreen dividend resolutions eliminate 60-day and 90-day payment stress by automatically distributing commission rights on December 31st each year.
- Shared DISC structures let exporters with under $3 million in sales split compliance costs while each partner keeps their full tax benefit.
Contact Details
LinkedIn - Brian Schwam
LINKS
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Brian Schwam |
TRANSCRIPT
(AI transcript provided as supporting material and may contain errors)
Dave:
Hi Brian Welcome to the podcast.
Brian:
Hi Dave. Thanks for having me. Excited to be here.
Dave:
Yeah, my pleasure. So quick intro, Brian is, what's your title with WTP?
Brian:
National Director of National Managing Director of International Tax Services, which encompasses export incentives as well as more general international tax consulting. Okay,
Dave:
And that's at WTP advisors?
Brian:
Correct.
Dave:
And you and WTP advisors are founding members of the IC-DISC Alliance along with my firm and myself.
Brian:
That is correct.
Dave:
And so are you brand new to this international tax business? Did you pick it up last year or something?
Brian:
That's funny. I don't think I look like I picked it up last year. I've been been full-time international tax since 1992IC, and prior to that I spent a few years as a generalist, which I think makes me a better international tax person, but it's been a few years, been around the block a few times.
Dave:
Well, I think it makes you better. I always introduce you as the IC-DISC guru. Now that Neil Block has retired, I think you can now take over the mantle of godfather of the IC-DISC,
Brian:
Right? Or the step godfather. I don't know if anyone can ever replace Neil. He had a lot of knowledge, has a lot of knowledge in this area and a lot of experience, and I'm just kind of flattered to be compared to him.
Dave:
Well, Neil was, I think my inaugural or second guest, and I think he's only been on the podcast once. So I think you're trumping Neil with this either your second or third visit.
Brian:
I think it's the third visit. And Neil's retired and joined the Good Life and I'm not, so that's probably why I've beaten them as far as number of appearances.
Dave:
There you go. Well, today I want to talk about IC-DISC. I want to talk about misconceptions and maybe underutilized opportunities. So the IC-DISC is straightforward as can be cut and dried. Anybody can prepare the return, anybody can do the calculation. Easy peasy. There's nothing to your toe on. Is that accurate?
Brian:
That's far from accurate. Okay. Strength. Yeah. A lot of practitioners think that is the case, but I've seen more than a handful of IC-DISC returns and IC-DISC calculations done by generalists that definitely have a flare for not knowing what they're doing or not understanding the rules. And for a six page tax return that looks very straightforward. You'd be surprised how many of them are completely incorrect.
Dave:
Yeah, it's kind of deceiving, right? Because even the instructions for the return are only a handful of pages, right? Like six or eight pages.
Brian:
And then there's a couple of lists of codes and things that make 'em a little longer. But yeah, there's not much to it. But I mean, initially there are some statutory and regulatory things that have to be done, have to be done the correct way, and the rules are very draconian. If you don't do it the correct way, there's really no way to remedy the fact that you set up, you just deal with the consequences of having a disqualified IC-DISC, which means you've lost your IC-DISC benefits prospectively and you set up a new one or you forego the benefits No in between, really?
Dave:
Yeah.
Brian:
So some of these misconceptions that I've run into could lead to a IC-DISC being disqualified.
Dave:
So what's the first one that comes to mind?
Brian:
The first one that comes to mind really for me in practice is how does the 60 day rule and the 90 day rule work, this has to do with when do I have to move money to the IC-DISC? And some people don't understand it and they do things that make it not a problem. Other people do things, they don't understand it and it becomes a problem. So the 60 day rule basically says you must fund a reasonable estimate of the IC-DISC commission to the IC-DISC within 60 days after the end of the IC-DISCs year.
It sounds very straightforward, but some people ignore that rule and some think they have to pay it all before the end of the year, but they don't have a 60 day window after the end of the year to accrue that IC-DISC commission and pay a portion of it. The other thing I see people do with the 60 day rules, they don't have all the information. They estimate a number. They say, oh, let's say the commission's going to be a thousand dollars and they pay $500 to the IC-DISC by the end of the 60th day. Well, what have they just done? Well, the 60 day rule says, yeah, you have to pay a reasonable estimate in the regulation. There's a safe harbor that says a reasonable estimate is at least 50% of the final IC-DISC commission. So by moving the least amount of money possible, they then limit their potential IC-DISC commission to two times that number. So rather than saying, oh, I think my IC-DISC commission's going to be a thousand and I'll pay 800 so that I have flexibility to go up to 1,600, they pay 500 and it can never be more than a thousand because there's a lot of information that's going to come out after the end of the year that's going to affect taxable income. And they generally don't know those things within the first 60 days after year.
Dave:
And what about for, I think this is for accrual basis taxpayers or accrual basis related suppliers. What about if it's a cash basis related supplier?
Brian:
Well, if it's a cash basis related supplier, now we're outside the DIS rules, but we're in the tax accounting. And in order to get a deduction, the payment does need to be made before the end of the year. If the payment is made after the end of the year, within that 60 day window, you've now pushed the deduction to the subsequent year, which really most people wouldn't be happy with. They want the production in the year that the exports arise, not in the subsequent year.
So the other rule having to do with the moving of the cash is the 90 day rule, which says that you have to pay the IC-DISC any remaining commission within 90 days after the commission has been finalized. Well, finalized really means when did I file my IC-DISC return? And so it's an original return. It can be filed as late as eight and a half months after the end of the year. So you really have 11 and a half months from the end of the year to pay the remaining amount. So if we assume calendar year, that's a September 15th filing and a December 15th funding deadline for the remaining commission. I see a lot of practitioners out there that think the 90 days ends on the filing of the IC-DISC return, not starts on the filing of the IC-DISC return. So then they rush to pay that money and then they think they have a problem if they haven't paid it by the time they file.
So I mean, there's no harm in paying it early, but that's not how the rule works. And then if someone's determining and amending a IC-DISC return and they owe more funds to the IC-DISC, they have 90 days. So when they file that IC-DISC return, amended IC-DISC return to make that extra payment to the, now, the other misconception is, well, what happens if my 60 day payment was greater than the final commission? I overestimated. So then the 90 day rule says if the IC-DISC received too much under the 60 day rule, it has 90 days that same 90 day window to pay back the overage back to the related supporter. So most people don't understand those rules and they do things that either potentially cause a problem or they create a lot of self-induced anxiety. They think they have to do something sooner than they have to do it.
Dave:
And speaking of the due date, if somebody wants to file their IC-DISC return in September, do they have to file an extension like to do their corporate return by March 15th?
Brian:
Nope. That is no, eight and a half months is the due date. There's no extension for a IC-DISC return. That is just the due date.
Dave:
And then what about if somebody wants to electronically file the IC-DISC return? How does that work? It doesn't. Okay.
Brian:
And why is that?
Dave:
Can't you electronically file
Brian:
Everything? Unfortunately not the IC-DISC, the 1120 IC IC-DISC is still a return that requires a paper filing. And sometimes clients don't realize that and they forget to file. And the good news is there's only a hundred dollars penalty for a late filing. But the bad news is if you keep continually don't file the IRS could. They could terminate your IC-DISC election. But yeah, there's no electronic filing. And then there's, there's another form. You also can't electronically file that relates to the IC-DISC, that it's the form 84 0 4, which relates to an interest charge that a taxpayer who owns a IC-DISC may have to pay if income is deferred to the IC-DISC and not distributed out as a qualified dividend to that shareholder. There's a lot of misconception around that form. And the first misconception is sometimes they think the IC-DISC needs to file that form and pay the interest.
That is not true. That is not true. And so many times I'm asked to file that and I'm like, I can't file it. I can't prepare it. I don't know the information that goes on. And it's based on the shareholder or the disk. And if the shareholder is S corporation or a partnership, it's not based on that entity, it's based on its shareholders or partners. And there could be multiple 84 oh fours filed. And then oftentimes there's a surprise like, oh, I have to pay interest. I didn't know I had to pay interest. Well, it is called an IC IC-DISC, and the IC stands for interest charge. So that should not come as a surprise, but it often does.
Dave:
Okay. Wow,
Brian:
Go ahead. Yeah, so we're still on moving cash around. So there's also timing of when the shareholder of a picks up dividend income. So a lot of people think that if they pay the IC-DISC within that 60 day window after the end of the year and pay the dividend in the same 60 day window, somehow the dividend is recorded as though it happened on December 31st, and there's no deferral of the income in the IC-DISC. That's just flat out wrong. A dividend is taxable when it's declared, and most likely it's not going to be declared as of the end of the year.
Dave:
So that's like a miss application of the age old matching principle in accounting?
Brian:
Yes. Yes, definitely. Or a misapplication of someone thinking they have a evergreen dividend resolution, which I won't get into at the moment, but it's something that is used to accelerate dividends so that they do match the deduction of a IC-DISC. And you can't just match it because you have to match it because there's some reason to match it or there's action that's taken that would cause it to be matched.
Dave:
And I've heard some professionals maintain that because they're basically accelerating the dividend income to the current year, thereby bypassing the inherent deferral. That's okay, because why did the IRS care if they got paid a year early? Do you think that's, what's your opinion of that?
Brian:
I think that's a nice practical approach to that issue. I use it myself. I don't think that the IRS would audit a taxpayer and say, oh, by the way, you picked up that dividend too early. I'm going to write you a refund check.
Dave:
Yeah.
Brian:
Plus interest, I don't think,
Dave:
Now what if there was an audit though, and you had an issue where the audit period it covered had a mismatch so that if there was a year that you say it was the 2022 tax year and the dividend income should have been recognized in 2023, but they recognized it in 2022, and then let's just say they did an audit from of 2023 in isolation, and then let's say in 2023, the client didn't use the IC-DISC or had a much smaller commission amount, could the IRS potentially say, we don't care about 2022. In 2023, you should have recognized the dividend income.
Brian:
They they certainly could. And then they'd say, well, 2022 is closed. We can't adjust that. So it's always better to not fall into that fact pattern, but it happens. Definitely happens.
Dave:
So it
Brian:
Sounds like the good news is there's not a lot of IC-DISC audits that go,
Dave:
Yeah. So you're saying it sounds like when in doubt, just follow the rules, it sounds like.
Brian:
Yeah.
Dave:
When
Brian:
In doubt follow the rules, don't make up your own rules, for
Dave:
Sure. Yeah. Well, and I think part of the problem is people may not be aware of the rules.
Brian:
They're not, and then they just fill in the blank. Their brain fills in the blank with what they think makes sense.
Dave:
Yeah, because a lot of be a lot of differences between the IC-DISC and say an S corp, right? Like the election to be treated as an S corp does not have the same deadline urgency as the election be treated as a IC-DISC. Is that correct?
Brian:
I'm not a hundred percent sure, but there might, yeah, I am a hundred percent sure. Because if you miss the deadline for the S selection, there's automatic relief available for the S selection to be made late. There is no automatic relief available for a IC-DISC election. Either you've met the requirement to file it within the first 60 days of the corporation its existence, or you haven't. Now, there are exceptions, and we have written some private letter ruling requests in the past to get be granted relief for missing that 90 day window, but that's an extensive
Dave:
Miss. Yeah, understood. And then some other,
Brian:
And you may not know for two years whether you're going to get the relief or
Dave:
Yeah, I know I've had CPAs tell me that they frequently will just include the form 25 53 S corp election with the filing of the initial S corp return.
Brian:
That's allowed. And that's allowed,
Dave:
Yeah. Obviously you can't do that with the IC-DISC return.
Brian:
No, no. So then on the topic dividends, there's also some misunderstanding or misconception of whether a dividend from a IC-DISC is subject to the net investment income tax, the 3.8%.
Dave:
Oh, yes. I've heard people take that position that it's not subject to. What are your thoughts?
Brian:
Well, my thoughts are that many years ago, like 11 years ago, the IRS came out and said, it's definitely subject to the commission IC-DISC paying a dividend. That dividend is definitely subject to the net investment income tax. So I personally don't get involved in individual returns, so I don't know what people are doing, but if I'm ever asked, that's what I'll tell somebody. And I say, you can take whatever position you're comfortable taking, but this is the position I know the IRS would take.
Dave:
Okay, that makes sense. What other pitfalls do you see or misconceptions
Brian:
People have? So when I see IC-DISC, there's a $10 million, let's call the $10 million deferral cap with regard to a IC-DISC. And what that means is any IC-DISC commission related to export sales made by the related supplier, which are greater than 10 million above that $10 million threshold, create what's called a deemed dividend. You're not allowed to defer any of that income in the IC-DISC. Well, in practice or in the real world, people think, oh, I can't have more than 10 million of export sales. If I go over 10 million, I can't use the disk. That's clearly not true. I have clients that have seen clients that have billions of dollars of export sales. They just have a very large deep dividend that goes along with the IC IC-DISC commission. There is no limitation on the amount of export sales, the limitations on how much of the income you can defer the IC-DISC if you have more than 10 million of export suit.
Dave:
Okay.
Brian:
I've also seen related to that issues where someone's exporting military property. So military property, half of the income is a deemed dividend automatic under the rules. And then I've seen where they then add, and let's say the sales were over 10 million, they've added, they made an additive, they took half of the commission on the military property, and they said, oh, my sales are more than 10 million. I have additional deemed dividend as well. That's not how it works. The way it works is you compute your deemed dividend on the sales in excess of 10 million, and then from that you subtract the deemed dividend related to the military property. And so the most your deemed dividend can be is related to that $10 million cap.
Dave:
Okay. Yeah, I was less familiar with the military aspect of it. I don't think any of my clients are exporting military property.
Brian:
That's just an example. I mean, there's other things that give rise to deemed dividends as well. For example, one way you can defer income in a IC-DISC is to loan the money back to the related supplier. Under a producer loan arrangement, there's very specific facts that support the ability to use a producer loan. But then each year, the interest that's earned on that producer loan is a deemed dividend.
Dave:
Oh, sure.
Brian:
Whether it's paid or not. So whether the interest is paid, and then when the dividend is actually paid, it's not taxable because we've got a lot of ordering rules in the IC-DISC about when things get paid out and how they get paid out, and I don't have all day, but that's another area where I think there's a lot of misunderstanding.
Dave:
Okay.
Brian:
Oh, well, so I can focus on one small part of that is the IC-DISC in year one has the income of a hundred. In first quarter of year two, they pay out the 100 to the IC-DISC and the DIS pays the dividend. And in year two, it earns $300, and that gets paid in year three. Well, I hear all the time, well, I don't have any income deferred to the DIS because I earned the a hundred dollars in year one, I paid it in year two, and I paid the dividend in year two, and then I had income for year two of $300 that I paid in year three. Well, it doesn't work that way. In the DIS world or in the tax world in general, current earnings are always considered to be distributed first. So that a hundred dollars that gets paid out in year two is really coming from the year two earnings. And the year one earnings are still sitting in the deferred, thus giving rise to the interest charge that someone thinks they're avoiding.
Dave:
Okay.
Brian:
So there's some misconception about how that works.
Dave:
So I have one I just thought of, and I've heard this is the one, the misconception I've probably heard the most. Under no circumstances can the IC-DISC commission create a loss at the related supplier level? No matter how you do the calculation, it's
Brian:
Impossible. That's a big misconception.
Dave:
Yeah,
Brian:
There's no rule. There is no rule like that. Okay. So the rule is actually applied at the level in which you're computing the IC-DISC commission. So if you have exports with a profit, but overall your company has a loss, you can still compute a IC-DISC commission on those export sales because they have profit. Now, you can't cause the profit on the export sales themselves to become a loss. So let's say your export sales are making 2% bottom line, but overall, your company loses 3% bottom line. Some people will think, I can't get a IC-DISC commission. I have a loss. That's not true. You can claim a IC-DISC commission, but it cannot be more than 2% of the export profit because then makes the profit on the export zero, but it can't go below zero.
Dave:
And that's if you're using what we would call the standard or simple calculation.
Brian:
That's the simple calculation. Now, if you're doing something more detailed and you're calculating a IC-DISC commission on a product or product line or a transaction, you apply that no loss rule at that level. So you can have a number of transactions that are profitable, you can have a number of transactions that are not profitable, and then different rules apply. There's really people think, oh, there's two methods to compute a IC-DISC commission. That's probably another big misconception. There's really 18 methods to compute a IC-DISC commission, and you can choose one that allows you to get a commission but doesn't create a loss, and in some cases does actually allow you to create a loss.
Dave:
And is that methodology difference? I can't think of the technical accounting term, like where if you change your inventory method, you have to notify the IRS or you make an accounting change. This isn't like that, right? You don't have to each year notify the IRS. We used the 4% method last year, we're using the 50% this year, or we're doing other methodology. Correct.
Brian:
So you technically notify them by checking various boxes on the IC-DISC return, but it's not like a change in the accounting method where you have to apply for a change and have it approved or have an automatic change. This is considered a change in facts. And however your facts bear out, you can claim whatever commission you're allowed to claim.
Dave:
Now, when you do that transactional calculation, another misconception I hear is that it's just impossible because there's all this data that the company doesn't have, and it's so complicated to do it that just nobody has the ability to do it. Nobody can do it. Nobody wants to do it. Talk to me about that. Is the data really impossible to get from the clients? There no client that can provide any data that can be used.
Brian:
There may be handful that can't, but by and large, most companies have the ability in 2025 to obtain that data. When the rules were written in 1972, I'd say it was probably flipped where only a handful could probably get that information. And the vast majority of companies would never be able to get that information. But somebody wrote the regs that way back in the early seventies, and with the idea that you could get transactional information and compute the dis commission transactionally as opposed to at a higher level where everything's grouped together or a simple calculation. But in 2025, it's very, I have a hard time determining conceiving of a company that can't get some information pulled together. And that's the other, there's a related misconception. Oh, I have to tie out every dollar of my cost of good sold before I can tell you I have cost of good sold data for a transaction.
Well, that's just not true because in the real world, companies make journal entries adjusting the cost of good sold. They don't do it at a transactional level. There's other things that schedule M'S on a tax return that affect cost of good sold. And so no, you don't have to nub that out to the last dollar to say, I have transactional data. You have to be able to identify what you can and what you can't identify gets allocated or apportioned across all the transactions. And if you think about it, if you say, I can't get anything, you're really apportioning all of the costs over everything anyway. That's the ultimate in apportionment. There's not even any allocation. You're just saying, oh, every one of my transactions has the same margin as a result, which is really factually never the case.
Dave:
Well, and I just thought of another one, and this isn't maybe a misconception as much as it is a misinterpretation. I can't tell you how many IC-DISCs I see that the related supplier is a flow through entity, yet they have the individuals own the IC-DISC. Have you seen this before?
Brian:
I've seen it. And sometimes they think that's the way it had to be. Sometimes they hadn't really thought of. It depends how they're using it. But the real downside to that is the IC-DISC commission reduces the income of the flow through entity, thus reducing the basis they have in their shares of that flow through entity. And then the dividend gets paid to the individual and there's no basis increase the dividend income. And unless they contribute the funds back to the business, they're eroding away their basis stock, which ultimately will result in a higher gain if they ever sell their business.
Dave:
When the ownership of the IC-DISC matches the ownership of the related supplier. Can you think of a scenario where it is actually beneficial for the individual shareholders to the IC-DISC instead of the related supplier?
Brian:
Yes. There are situations depending on where this shareholder lives. So let's say the shareholder lives in, say the company is operating in a state with a state income tax, but the shareholder lives in a state that doesn't have a state income tax. It's possible to get that dividend to the shareholder tax free, where maybe if it went through the S corporation or the partnership, it would not be tax free.
Dave:
I see. And you're talking about tax free at the state level?
Brian:
Yes. Federally, I don't really see in a regular IC-DISC that's just been used to pay dividends to the owners of the supplier. I don't see, unless it's a C corporation, in that case, you don't want the IC-DISC owned by the C corp, but if it's a flow through entity, you generally get the same tax answer, whether it's owned directly by the flow through entity or directly by the shareholders.
Dave:
Okay. Oh, I just thought of another misconception. It's funny, when we started this column, I only had a handful of misconceptions. But the more we talk, the more we think of. So here's another one. Say you have a flow through as the related supplier yet for whatever reason, you want the IC-DISC to be owned by the individual shareholders. Well, I've been told several times that the ownership of the IC-DISC must match the ownership of the related supplier. There is no option to do otherwise. Is that accurate?
Brian:
That's a fairly strong statement. So the answer to that is no, it's not absolutely not required. Now, if the shareholders are related to one enough FAMILIALLY related, and there appears to be donative intent. So if mom and dad own a company and set up a IC-DISC and transfer it to the kids, there is some old IRS guidance out there that says, Hey, when a IC-DISC commission's paid to that IC-DISC, mom and dad are making a gift to kids. So that's a pattern you want to avoid, which is pretty easy to avoid, frankly.
Dave:
And you would avoid that by just setting up a new IC-DISC that the children would
Brian:
Set up initially and not get transferred by
Dave:
To the right and where the kids are making the capital contribution to Bible stock and
Brian:
Right. Exactly. But that's the one little gray area. Otherwise, there are some people out there that set up a IC-DISC to fund bonuses for executives. And we've kind of transitioned here away from misconceptions to underutilized opportunities because really that's an opportunity where you can use a IC-DISC to fund bonus payments to key executives and owners, or not owners, and it doesn't save the company any money, but it certainly saves the recipients a good amount of tax because if they get bonuses, they're paying tax, whatever their ordinary rate is, let's just say 37%, where plus there's payroll tax of 3.8%, whereas if it's funded through a IC-DISC, they pay tax at the qualified dividend rate plus the 3.8%. So it's a 17% rate differential on that type of income between the wages and the qualified dividend for the recipient.
Dave:
And I guess it would also save the employer portion of the employment taxes as well, right?
Brian:
Well, it saves the employee and the employer, but it's replaced by the Obamacare net investment income tax. So they're both 3.8%.
Dave:
But if you had a simple example where an employee had a base salary of a hundred thousand dollars and they had a $20,000 bonus that was paid through the IC-DISC, that would've been subject to
Brian:
Fica. I'm thinking about people that are making more than
Dave:
Understood,
Brian:
But you can save FICA tax as well,
Dave:
And the
Brian:
Employer and the
Dave:
Employee, and that's kind of what I was thinking of. And even when they get above that limit, there's still the 1.45% that I think has no cap.
Brian:
Right. But again, that's the employer portion. Then there's the employee portion together that's 3.80,
Dave:
Right, which is the,
Brian:
So you've got the Obamacare tax. Gotcha.
Dave:
Well, that reminds me of another misconception that you had alluded to, and that is that a related supplier can only have one IC-DISC affiliated with it. Is that true?
Brian:
That is not true. Related supplier could have a thousand IC-DISCs if it wanted to.
Dave:
In fact, that option you mentioned of the employee owned IC-DISC, I usually see that as that being an additional IC-DISC kind of in addition to the primary IC-DISC. Is that usually how you see it?
Brian:
I see that way as well. Yeah, for sure. Or I see IC-DISC A is going to fund bonuses for the C level executives, and then IC-DISC B is going to fund bonuses for middle management. And so middle management IC-DISC has a targeted amount, and the upper level IC-DISC may not have a targeted amount. It might just be unlimited.
Dave:
Now, the drawback is if you have multiple disk, the combined commission amount for all of them cannot exceed what it would've been if you had just one IC-DISC. Right. It's not a mechanism to create larger combined
Brian:
That definitely can't, doesn't work. Yeah, it definitely would. But yeah, you can definitely set up different structures to fund bonuses for different people, or if it's a C corporation, and we don't see a lot of C corporations with IC-DISCs. But if you're a closely held C corporation, you can have a shareholder owned IC-DISC, and if you're in the habit of paying dividends, you can pay commissions to a DIS instead of paying those dividends,
Dave:
Avoiding the double taxation in
Brian:
The corporate layer. Exactly. So that's an underutilized opportunity in my opinion, because there's got to be more closely held C corps out there than the amount that are using IC-DISCs.
Dave:
And I guess another one, we touched on this earlier, but the evergreen dividend resolution, what's this all about? Why is this an opportunity? What are the benefits of
Brian:
It? So the evergreen dividend resolution basically says the IC-DISC is going to distribute, its right to receive a commission each year on the last day of its year. So that accelerates the dividend into the same year as the commission expense.
That alleviates the need to move money under the 60 day rule and 90 day rule. There's no reason to move the money if you're not trying to qualify a receivable. That's what those rules relate to, whether you're as receivable as qualified or not. So that's a benefit. It also can guard against the law change where the rate on the dividend income would go up in the subsequent year. You can avoid that. But a lot of practitioners treat their IC-DISC like they have an evergreen, but they don't actually have it. And that's a problem in my mind. But if you have it, it just makes everything a lot easier. You don't have to try to figure something out by the end of February. You figure it out once and you just treat it like it all happened at the end of the year. And I know that that works because I had a client years ago that was in tax court in the great state of Texas. The issue came up. I wrote up a brief for the client, and the tax court accepted the evergreen as a viable dividend resolution
Dave:
Because in a way, didn't the tax court almost defer that to the state rules?
Brian:
Well, they just fall under. So you can have a dividend, you can create a dividend under state corporate law just by writing a resolution, but you have to have the income to support the dividend, to have a dividend for tax purposes. So if you have the resolution that says, I'm declaring a dividend on December 31st every year, then based on facts, you either do have a dividend or you don't for tax purposes depending on how much income you have. So it just falls back on that probably one other underutilized
Dave:
Opportunity. Well, Brian, before you move, I just wanted to talk about the evergreen, I guess is the biggest drawback that the taxpayer would miss out on the deferral.
Brian:
That's one of the drawbacks. The other drawback has to do with the interplay between all of this and this 4 61 L limitation, which limits how much of a flow through loss a taxpayer can deduct in a year. So you could have a situation where the IC-DISC dividend on a transaction by transaction basis becomes so large, the commission becomes so large, it creates a loss and the flow through entity, the shareholder can only deduct a certain amount of that loss, but they would have to potentially pick up all the dividend income
Dave:
And then
Brian:
Deduct that loss at a later point in time. Now, personally, I'm still getting a permanent rate benefit out of it. So if I'm not going to sit on this loss for years and years, I think it's okay. But if I'm going to sit on that loss year after year after year and not utilize it, then I don't want to be picking up those dividends that I can't utilize the losses. So it just requires some additional coordination between the CPA and us and the client to determine exactly what the right commission should be.
Dave:
Okay. So you're about to,
Brian:
And that's another misconception.
Dave:
Yeah, go ahead.
Brian:
Yeah, like, oh, my commission has to either be whatever I compute or zero can't be anywhere in between. That's a misconception because I can target an amount, and as long as my IC-DISC commission agreement gives the related supplier the unilateral power to include or not include a IC-DISC export sale in the IC-DISC calculation, I can pick and choose whatever number I want that to be so that I don't have a 4 61 L problem, or I don't have the number be bigger than I can utilize. In other words.
Dave:
And that's because the IRS does not require you to capture every export sale. So that's basically limit the IC-DISC commission to a specific amount and back into which of the export sales you'll basically exclude from the calculation.
Brian:
Right? Right. Exactly. Exactly. But again, also we like to see that supported in the IC-DISC commission agreement.
And then the last underutilized opportunity has to do with G there. Having a IC-DISC does have some cost. So if I don't have at these 3 million of export sales, it might be questionable whether I can really benefit economically benefit from a IC-DISC. When I look at the cost and the benefit, well, there are structures out there that we'll call a shared ING IC-DISC where partner like small exporter can invest in a partnership. That partnership owns a IC-DISC. Maybe there's five or six investors in the partnership. They're all unrelated. They all have, let's call it a million dollars of export sales. And on a standalone basis, there'd be too much cost for setting up the disk compliance to offset the tax benefits, but it'd be greater than the tax benefits. But if I can use a shared disk, then I only have to share a portion of the cost, the annual cost of the IC-DISC, but I still get my tax benefit. And really what happens with the other partners? So the partnership owns the IC-DISC. The IC-DISC earns that commission from the related supplier, then the IC-DISC pays all of its dividends to that partnership, and the partnership can then allocate the dividends back to the individual exporters based on their contribution. So it's a way for smaller companies to still get a tax benefit out of it. And I seen very few of these out there. So there's got to be thousands of companies that export that just don't export enough to have their own IC-DISC.
Dave:
Yeah, yeah. No, that's an interesting opportunity. And I agree based on my experience. I mean, I've talked to so many people in the past, or I did talk to so many people who exported $2 million or less, and I'd have to say to them, it's probably not worth the time and the cost because there's time on their end and then there's hard cost to have the work done.
Brian:
Yeah. I've had the same conversation countless times with companies as well. It's really something that both exporters and their CPAs should be aware of because the CPAs are in the best position to know that their clients are doing some level of export.
Dave:
And I just thought of another misconception, and that is that the virtually from the day after the IC-DISC rules were enacted, prognosticators started saying that the IC-DISC is going away. It's just going to be a short-lived thing. And even in the two decades I've been involved in IC-DISC work, I've heard this from so many tax practitioners, oh yeah, this thing's going away anyway, why bother?
Brian:
Yeah. Well, it really, for it to go away would fly right in the face of current policy in the administration. So I don't think it's going away anytime soon. Some of the benefits have been whittled away over time with some of the other provisions that are coming into play, but it's really not going to get repealed anytime soon. Certainly not in the next four years after that, who knows. But certainly it's good for the next four years. But it's funny, in 2003 with the Bush tax cuts, they brought in this concept of qualified dividend income, which really revitalized the use of the IC-DISC for a lot of pass through businesses. One of the big four firms said, oh, it's going to be a technical correction, and the qualified dividends are not going to include the dis dividends. Well, here it is 22 years later, I'm still waiting for that technical correction out of Congress, but I guarantee you that they've advised their clients to use the IC-DISC, even though they were out there saying, oh, no, no, no, no, no. This is an error. It's going to go away.
Dave:
Well, I had this conversation, I think it was in 2009. I think the preferential dividend rate was IC-DISCussed going away at the end of 2010. If I have my time horizon. And I remember it was late summer of I believe oh nine, talked to the potential client, they connected me to the CPA, and this was the international tax partner of a top 50 CPA firm. And she said to me, quote, I think you're being reckless even bringing this idea up to my client. I said, why is that? She said, are you not aware of house resolution such and such that hadn't been passed, but the resolution was going to ever go away? And she said, if this is passed, then this will not be usable beyond the 2010 tax share. And she said, we think it's reckless and not even sure why you'd want to bother with it if you can only at max use it for a year and four months. And I remembered saying, I appreciate that. You may not think it's worth it, but I wonder if the client, when he does the ROI calculations, if they might think it's worth it. Because even if they only used it for a year and a half, it still might be worth the cost to set it up, the compliance cost and the cost to shut it down.
Brian:
That whole analysis took place in 2007, 2010, 2012. I remember, I'm not proud of this, staying up late on New Year's night of 2013, so I could watch Congress vote because they let the qualified dividend rate lapse and then they had to reenact it the next day. And they did it on January 1st, and I sat in front of the TV watching. I was fairly invested in whether they were going to vote for it
Dave:
Or not. Yeah. Well, I think that's appropriate. You're a little bit like the soup Nazi from Seinfeld. He is got such passion for his customers.
Brian:
There you go. Yeah, I definitely am passionate about what I do because I love what I do. I couldn't imagine not doing it.
Dave:
Yeah, I find the same.
Brian:
And I love helping taxpayers legitimately reduce their tax burden.
Dave:
Well, and the clients that we help tend to be entrepreneurial type companies, they're not Fortune 500. And I've seen where this can legitimately make a difference in freeing up cash to buy more equipment, hire more people. It's quite a stimulus.
Brian:
Also not a misconception is Fortune 500 companies can't use a IC-DISC. It's really for private companies.
Dave:
Yeah.
Brian:
It's not something that you'll see a lot of or any private public companies utilize.
Dave:
Okay. Well boy, we've covered a lot. Anything left to cover? Any other misconceptions or opportunities you can think of?
Brian:
Nothing that I don't think we've IC-DISCussed.
Dave:
Okay. Well, I have one final kind of fun question. So with the benefit of hindsight, if you could go back in time and give advice to, say your 25-year-old self, what advice might you give to yourself?
Brian:
It's going to be completely non-tax related.
Dave:
That's okay.
Brian:
If you tear a ligament to your knee, get it repaired. I did that and I didn't get it repaired. And ultimately I got a new knee, which works just as well as the original with a lot more probably pain in the interim.
Dave:
Gotcha. Okay. Well that's good advice. So the takeaway, if you're 25 years old and you have a ligament tear, don't wait 30 years to get it fixed
Brian:
Or to not get it fixed at all and just get an artificial knee.
Dave:
Yeah. Understood. Well, Brian, thank you so much. This was really fun. I mean fun by a couple of IC-DISC nerds. I guess not everybody would consider this conversation fun, but I thought it was a lot of fun and I appreciate the expertise that you bring to this matter.
Brian:
I appreciate the opportunity to be here and chat with you about it. And maybe in the future there'll be some more topics we can talk about.
Dave:
Yep. I would enjoy that. We should make it an annual tradition.
Brian:
That sounds like a good idea.
Dave:
Alright. Hey, have a great day, Brian.
Brian:
You too, David.
Dave:
There we have it. Another great episode. Thanks for listening in. If you want to continue the conversation, go to ic IC-DISC show.com. That's IC dash D-C-S-H-O w.com. And we have additional information on the podcast archived episodes as well as a button to be a guest. So if you'd like to be a guest, go select that and fill out the information and we'd love to have you on the show. So it we'll be back next time with another episode of the IC-DISC Show.