Setting up an IC-DISC the right way can mean the difference between maximizing tax savings and having issues down the road.
In this episode of The IC-DISC Show, I sit down with Brian Schwam, IC-DISC specialist and tax attorney, to walk through the complete IC-DISC setup and compliance process from start to finish. This conversation was inspired by a CPA request for a comprehensive guide covering every step of the IC-DISC journey.
Brian breaks down the entire process chronologically, from the initial consultation to determine if a business qualifies, through the critical formation steps that can make or break your IC-DISC. We cover proper capitalization requirements, the infamous 90-day election window, why non-interest bearing bank accounts matter, and the draconian 60-day payment rule that catches many businesses off guard. He explains the difference between simple and transaction-by-transaction calculations, sharing an example where detailed analysis increased a client's commission from $4 million to $17 million on $100 million in export sales.
Whether you're a CPA learning about IC-DISC for the first time or a business owner considering this strategy, Brian's systematic approach demonstrates why working with a true specialist matters when navigating these complex regulations.
SHOW HIGHLIGHTS
- A detailed transaction-by-transaction calculation increased one client's IC-DISC commission from $4 million to $17 million on the same $100 million in export sales.
- Missing the 90-day election filing window requires a private letter ruling costing $35,000-$40,000 to fix, making it cheaper to just set up a new IC-DISC.
- The 60-day payment rule requires paying at least 50% of your estimated commission in cash or promissory note within 60 days of year-end to avoid disqualification.
- Setting up an IC-DISC with no par value stock is a fatal error that will cause the IRS to reject your election, regardless of everything else done correctly.
- A non-interest bearing bank account is essential because even $1.50 of interest income can disqualify your IC-DISC if no commission is paid that year.
- Export sales typically need to reach $3-5 million before an IC-DISC makes economic sense, though exceptions exist for businesses with exceptionally high profit margins.
Contact Details
LinkedIn - Brian Schwam
LINKS
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Brian Schwam |
TRANSCRIPT
(AI transcript provided as supporting material and may contain errors)
Dave: Good morning, Brian. Welcome to the podcast.
Brian Hey, good morning David. Good to be here.
Dave: So I, I now refer to you as the Bob Hope of the podcast because I believe that Bob Hope holds the record for the most appearances on the Johnny Carson Show. So that's why you're like the Bob Hope of the podcast. You have more appearances than anyone else with today's appearance.
Brian That's good company to be in if you're of a certain, if you're of a certain age.
Dave: Yeah. And I'm not even sure you and I are quite old enough to even be of that certain age.
Brian I probably never saw him on Johnny Carson.
Dave: Yeah, me too. So this is an episode that was requested by a CPA of one of our clients who was retiring and he had a new.
Partner taken over and he said, Hey Dave, can you send over a link to the episode that just goes through all the details of the IC disc from start to finish? And I'm like, well, we don't have that episode, but it's a great idea. So that's what's behind this. So let's start at the very beginning. Somebody calls you up and says, Hey Brian, I need an IC disc, or I want an IC disc.
What's the very first step?
Brian Very first step for me is to say why.
Dave: Okay,
Brian tell me about your business.
Dave: Okay.
Brian You know, do you have qualified export receipts? Do you have qualified export property? That those are very complex areas. And some people might think they do when they don't, and others might think they don't when they do.
Dave: Okay.
Brian And more likely than not, they heard about IC disc from. Somebody they met at a, you know, business leader meeting or something and somebody said, oh, hey, I have an IC disc. You should have one.
Dave: Okay.
Brian And not everybody can utilize one, but there's many out there that can utilize 'em that do not.
Dave: Okay.
And do you charge anything for that consultation?
Brian No, because to me it's just a fact finding.
Dave: Okay. So step one, figure out if their fact pattern warrants having an IC disc.
Brian Right? Right. Well, it's, it's actually, that's one step. If you deter, if we determine that yes, an IC disc makes sense because they do have qualified export property, they do have qualified export receipts, then we have to talk about volumes.
Because, you know, if you have 500,000 of export sales, most like more likely than not. Disc isn't gonna make sense.
Dave: Economic sense when
Brian you factor Right. Economic, the
Dave: costs
Brian not right. There's not enough benefit to offset the cost at that, at that level, most likely. Of course. It [depends on what, what it is they're selling.
Dave: Sure. Do you have a rule of thumb you typically use? Is it like three or 5 million where it typically makes sense or every case
Brian For most, for most businesses, that's sort of the range that where it starts to make sense, but there are always exceptions to that.
Dave: Sure.
Brian So like I had a client that had, you know, 600,000 of export sales, but their bottom line profit was 80%.
Dave: Okay.
Brian So in that instance, hey, it made sense, but for most companies that have 600,000 of export sales, it, it probably doesn't make sense.
Dave: Okay. So let's say they have 5 million of exports, good margins, looks like it makes economic sense. What's the next step then?
Brian Well then we talk about what is the tax structure of that exporting company?
Is it a flow through entity? Is it a C Corp? And how is it owned? Sometimes [00:04:00] it's owned by a foreign company that makes things way more complicated. Okay. It's owned by a combination of different shareholders, some of which are individuals, some of which are corporations. So that can be complicated. And sometimes it's just a, it's just a pass through entity that's owned by, you know, let's say it's an S corporation that's owned by a family owned.
Dave: Sure.
Brian You know, so you, you can have a lot of different fact patterns and that will dictate a lot of things with, with respect.
Dave: Okay.
Brian To how the disc is organized.
Dave: Might that also be the time? You inquire as to whether multiple discs might make sense for their structure, or do you typically just focus on kind of getting the initial disc in place and then exploring that over time?
Brian Probably the latter.
Dave: Yeah.
Brian Initially I, you know, the goal is, you know, do you have enough activity? Do you have the right kind of activity? What kind of benefit is it that you think you can, we can get for you? And then, okay, if the answer to all those are in the positive, then it's like, okay, how should this disc be owned based on what we're trying to achieve and where should it be set up?
Because that also can have a lot of negative surprises if you set it up in the wrong place.
Dave: Yeah. So let's say and I think there's some rules of thumb like if if the. Exporting company is a C corp, you typically don't want the C Corp to own the disc, is that correct?
Brian That is, that is correct.
And that's because a C corporation pays tax on a dividend. It receives from the IC dis, so effectively there's no benefit.
Dave: Okay. So with a C corp, typically it would be the individuals, individual or [individuals that
Brian are Oh, the, the shareholders typically,
Dave: yeah.
Brian You know, possibly a management group could be involved as well, but typically we're talking about the shareholders of the C corporation.
Dave: Yeah. And the shareholders of the disc do not necessarily have to mirror the shareholders of the C corp. Right.
Brian That is sort of up in the air. I, I prefer that to be the case, but it doesn't have to be the case.
Dave: Yeah, like in a simple example, census C Corp owned by one person and when they set it up, they wanna add a couple key employees to it.
Brian Yeah. That, that, that's probably fine. You know, there's some old revenue rulings out there from the early 1980s that have a bad fact pattern, which the IRS held that the structure created gift tax issues, but that was like a mom and a dad and a son and a daughter, and mom and dad set up a disc and then gave the stock to the son and the daughter.
And, and so that, that's, I see that's a bad fact pattern. What you described is a completely different fact pattern. There's no donative intent in that fact
Dave: pattern. Yeah. Okay. In
Brian fact, that I have a client that started out where the disc and the C Corp was. It did have mirror ownership, but over time, that has changed dramatically.
But still, there's no donor of intent because we have all these unrelated families that own shares in the company in this quote company. And when there have been redemption opportunities over the years, they have the choice redeemed, the disc shares redeemed. The, the C corp shares redeemed them both.
So some of like kept their dis shares, but gotten rid of the C Corp shares and vice versa. But really without the donative intent, plus some court case you know, precedent, I, I'm not [00:08:00] so concerned about that issue.
Dave: Okay. Now let's switch gears and let's say it's a flow through an S-Corp partnership et cetera.
Do you typically want the individuals to own it in that situation? Say that the company has three shareholders, would you just make them the three owners of the disc? More often than not, no. Okay. And why is that?
Brian Because it, you get the same benefit by making the disc a subsidiary of the S corporation without some of the extra complexity associated with having the disc be owned by the shareholders.
Now that, that's, that's preferred, but there are also situations where that doesn't make sense.
Dave: Okay.
Brian So let's say the, the S corporation is in California and the shareholder lives in Texas, or Florida. Or Nevada.
Dave: Okay.
Brian So they might want that dividend income flowing directly to them so that there's [00:09:00] no state Oh.
So that there's no state income tax on the dividend.
Dave: Sure, sure.
Brian Okay. Okay. Yeah. So again, it's just another fact you need to uncover in the process of trying to figure all this out.
Dave: Okay, so you've met with the client, you've figured out a disc makes sense, you've dug further you figured out the ownership structure of the disc.
That makes sense. So then I guess you have to figure out where to incorporate, huh?
Brian Yeah. And that again, there are good states and bad states.
Dave: Okay.
Brian Some states will tax an IC dis as a regular C corporation, you wanna avoid those states. Some states don't have an income tax at all, and those are good states to deal with.
Dave: Okay.
Brian And the three, you know, I'd say there's three states that are predominantly viewed as positive, and that would be Delaware, Texas, and Nevada. Okay. They're all fairly similar.
For filing. And, and none of them have a corporate income tax on the dis so that's, that's all good in terms of not adding additional costs to the, the structure.
Dave: Okay. So I'm in Texas and thus you, it seems like most of my clients end up incorporating in Texas. Do you just so here we are January 8th.
We're recording this of 2026. So do you just do you just get around to doing it anytime before the end of the year and then you could use the disc the whole year? Is that how it works?
Brian It's not how it works. It's generally a prospective opportunity. So you wanna get that entity formed as quickly as possible.
Dave: Okay. Yeah. I've had people, I've heard [00:11:00] people say that if you don't do it on January 1st, you just have to wait till the next year.
Brian No. That, well, that's certainly not true. And from any date forward that you set it up, you can certainly get benefits or shipments. Okay. That they, but one other item that I forgot to mention earlier, they also like to ask if the, if the related supplier entity, which is the exporter, if they're an accrual based company or a cash basis,
Dave: ah,
Brian that's an, that's an incredibly important issue
Dave: Sure.
Brian Dealt with. That's why.
Dave: Okay.
Brian Because the disc is an accrual base taxpayer by default.
Dave: Yeah. Okay, we'll get into that when we get further around the,
Brian okay.
Dave: I think about when I was a kid, there was a, there was a Saturday morning TV series I think called schoolhouse Rock. And one of the episodes was how, how a bill becomes a Law [00:12:00] And there's the whole steps, the
Brian episode, everybody remembers.
Dave: Yep. Yep. So everybody our age at least. Okay, so you've got the disc set up and say you do it in Texas and let's say they make the decision January 8th, takes a few days to, you know, just kind of get stuff, you know, information from the client set up. And let's say you get it set up January 15th, so then they're good to go, huh?
They can just start using that disc and away we go. Anything else? Ha. That has to be done Or is it, is it that some
Brian on the, on the surface, yes, that's true.
Dave: Okay.
Brian But beneath the surface, there's other things that have to take place.
Dave: Okay. What's the next thing that has to happen after you've formed the disc?
Brian Well, you have a, there's a 90 day window to file a disc collection with the IRS. That's probably the most critical thing that has to happen. You have to file an actual paper form with the IRS to elect disc status for the company, because the company, when you set it up, it's just a corporation. Without that election, it's not a disc.
Dave: And that election, is this the famous form 48, 76 dash a, is that said election,
Brian famous or infamous in some cases,
Dave: yes. Yeah. Okay. So you have to, so you just well, you just go to the IRS website. Download the form, send it in, bing, bam. Boom. You're done. You're good to go.
Brian Not exactly.
Dave: Okay. That's the
Brian first
Dave: step.
Brian Skip. That's the first step. But the I mean, first of all, when you're setting up the disc, you have to make sure you incorporate it properly.
Dave: Okay.
Brian I kind of glossed over that.
Dave: And what are some of the elements of proper incorporation?
Brian Well, for example, when you go to a, the Texas website or any other secretary of State website to organize the company, because it can be done all online, [00:14:00] like the default is always, you know, no par value stock,
right.
Brian If you just select the default, you are going to have a problem because Okay. Dis rules require, you know, par or stated value of $2,500 on the, issued an issued an outstanding stock of, of the disk. So I had a client that came to me years ago. They had set up a company in, well, they used Wyoming, which is also possible to use, and it's not a bad jurisdiction.
And they had, he had his quote unquote friend that who was an attorney, set it up for him. And there were some issues with the DISC collection and it went back and forth and then ultimately took a look at the articles of incorporation and it had, you know, $1 power stock, 1000 shares.
Dave: Ah, that's a problem.
Brian That's, [00:15:00] yeah. So no matter what happened with the disc election and the back and forth with the IRS, the disc election was ultimately never approved because the entity didn't meet the requirement. Having enough outstanding capital stock. So you have to have one and it can only have one class of shares.
So there are, you know, there are some hoops you have to jump through in terms of not doing things incorrectly or doing things correctly. So you have to make sure there's one class of stock, $2,500 par value. There can't be foreign sales corporation in the same patrol group, which years ago was a big deal, but now it's not really a big deal because those have been gone for many years and almost nobody has one left.
Not, not really an issue there. And what, you know, those are the formation matters that, that mattered, that are important to make sure you, you meet when you form the entity. Okay? If it's formed wrong, right from the get go, you have a problem. If [00:16:00] it's formed correctly, then the next step is yes, file a disc election.
Dave: And, but before you file the disc election, there's a step we're missing, right? Doesn't the DISC election require. To put the corresponding EIN for the distance. Oh yes. I mean, I just assumed we, yeah, you obviously you have to apply for an ID number for the new entity that does not come automatically with the incorporation.
Brian 'cause that's done with the state as opposed with the IRS yes.
Dave: Yeah. And that's become more challenging. It used to be pretty easy to get an EIN you could apply under a corporate name or
Brian yeah. But there, there's a, you know, there is an online portal with the IRS to get an EIN for a domestic company.
So it's not, it's not
Dave: terrible. Yeah.
Brian It's not terrible.
Dave: Yeah. So you have the EIN that you need for the 48 76 ae.
Brian Right.
Dave: You have you have 90 days,
Brian you have the proper capitalization.
Dave: Yeah.
Brian You figured out who's gonna own the disc because the, the disc collection is. Signed, you know, it's not just made by the disc entity.
It's made by the disc entity, then consented to by the shareholder. So you have to make sure that all that takes place. I can't tell you the number of times where somebody filled out part one, the disc signed it, and then the shareholder forgot the consent to it. And if you don't do the 48 76 dash eight correctly, you get it filed timely.
It's an extremely expensive fix to try and get that
Dave: rectified.
Brian Generally, you have to try to get a private letter ruling, which will grant an extension of time to file the late disc collection.
Dave: Okay.
Brian And that's that's an expensive process. It's a 25 to $30,000 exercise to [00:18:00] file the private letter, really.
Plus you have to pay a user fee to the IRS of 10,000, 11,000.
Dave: Wow. Yeah. It seems that seems inconvenient at, at best.
Brian And for most companies, they're better off just setting up a second dose
Dave: Sure.
Brian As opposed
Dave: to process,
Brian because how much volume there is.
Dave: Yeah. Yeah. And I understand the IRS itself refers to these as a, a paper entity.
So I guess since it's a paper entity, that's it. No need to fuss around with a bank account or actually have to capitalize it with actual money is there.
Brian It's, it's recommended, but you're right, it's not required. There's no requirement in the disk rules to set up a bank account.
Dave: Okay.
Brian So there it could simply have.
A receivable receiv for the capital stock. And that can be, its working capital doesn't have to have a bank account, but that's sort of a misnomer that people think it must have a bank account. Okay. In the original regulations, that was a requirement, but when the regulations are finalized, the requirement was removed.
Dave: Okay. But practically speaking, it you probably wanna have a bank account.
Brian Yes. Practically speaking, it makes all the sense in the world to have a bank account, a non-interest bearing bank account.
Dave: And why is the non-interest bearing important?
Brian Well, it, it has to do with one of the annual requirements of a disc.
That 95% of its receipts have to be qualified export assets. I'm sorry, receipts. And so let's say in a year the company decides. You can't always decide not to use the DIS even though you've got it in place. So let's say the company says, well we're not gonna use the, this year we had a loss. In our business there's no using.
Dave: Okay.
Brian We say, okay, and then the DIS bank account earned a dollar 50 of interest income.
Dave: Okay,
Brian well 100% of the receipts are now not qualified receipts. Okay. Income and no other revenue. If there was a non-interest bearing bank account, it would just have no receipts and then it would be fine. But the earning, the dollar 50 of interest would disqualify that.
Dave: Okay. So non-interest bearing account and then I guess the dollar amount in the bank account, what you start with, $2,500 initially.
Brian Yeah, pretty much keep it there forever.
Dave: But, but it doesn't matter if you end up, oh, if you're a little lazy and you forget to distribute all the money and you end up with 50 grand at the end of the year, that, that's not a problem, is it?
Brian It is.
Dave: It is. Everything's a problem
Brian with you, Brian, because everything, 'cause the, these rules are draconian and everything can become a problem. So a commission dis anyway, a comm, [00:21:00] you know, a paper entity commission dis doesn't need $50,000 of working capital. And the IRS would hold that, that that's not a qualified export out.
Like having too much working capital in DIS will cause it to fail. The other test, which is the 95 qualified export asset test 2,500, you know, an amount of cash equal to the capital stock is fine.
Dave: Sure.
Brian Amounts above that start to, you know, raise questions as to whether. That's reasonable working capital or not?
Given that the entity's a paper entity, it doesn't really have any expenses. Maybe some bank fees. That would be about it. In most cases, it really doesn't need cash sitting.
Dave: Yeah. Yeah. So maybe 3000, 3,500 to account for some bank fees or,
Brian yeah, at most, yeah, we start getting about 5,000. It really starts to [00:22:00] look questionable.
Dave: Okay. Oh, I just realized, I think in the initial assessment there was a step we forgot and that's, do they want to make it a buy sell disc or a commission disc? What percentage of your clients are commission discs? Mine a hundred percent. That's
Brian 99%.
Dave: Yeah. So we're just stepping ahead assuming that it would be a commission disc,
Brian right.
I mean, the only time you would really have a buy sell disc. 'cause if you have a business where. They're buying inventory from unrelated parties. And all the inventory is manufactured in the US and all of it is export.
Dave: Yeah.
Brian Okay. That, that, that I do have, like I said, two clients that have adopted that structure.
One was commissioned disc with an S-corp and they converted, they merged the S-corp into the disc and just became an operating disc. You know, and that's a little different than a buy sell disc. I mean, an operating disc. People think of buy, sell dis an operating disc for the same thing. They're really not.
I mean, 'cause you could have a, the equivalent of a commission disc, but have it be by sell where it could buy product from its related exporter and then export it.
Dave: Okay.
Brian It's possible that, that, that tho that fact pattern, I don't have any clients in.
Dave: Okay.
Brian It's possible.
Dave: Okay. So we've got the election filed and then at some point the IRS will send the taxpayer letter approving the election, right?
Brian Correct. That is, that was true.
Dave: And then so we've got the, the B and usually it makes more sense to have the disc bank account at the same bank as the operating company, right?
Brian It typically does,
Dave: yes. Yeah. And we'll get into that when we get further into the operation of the disc. Okay. So it's all set up.
And elections filed, election approved. So now certainly we're done with incorporation and government governance matters, right?
Brian No. No,
Dave: not yet.
Brian Not yet. Not yet. Okay. We still have to make sure there's a a call, a related supplier agreement or disc commission supplier agreement in place between the, the exporting entity or entities and the disc itself.
This document is, it's not, again, it's not required in the regulations, but it is recommended. It gives the related supplier a lot of flexibility in how it uses the disc and if it uses the disc and it gives it unilateral powers to decide not to use the disc. It also lays out the, you know, sort of boil legal boilerplate language about an inter intercompany agreement between the two business.
Dave: So you could just go to chat GPT and have them spool up a one page sales agent agreement. Is that right?
Brian Maybe. I don't know. I haven't tried that 'cause I don't wanna teach chat GPT how to, how to do that, but because every time you ask it a question, you teach it, right?
Dave: Sure.
Brian General, no, it's a pretty specific agreement and it has very specific provisions in it.
Provisions and so somebody that knows what they're doing really needs to draft them.
Dave: Okay. Okay. So this is kind of pointing away from just having your general corporate attorney who's never heard of a disc, do all that quote paperwork.
Brian Yeah. I never recommend. I always recommend that a specialist do it, namely myself take care of it.
Dave: Okay. Yeah. 'cause you are, in addition to having an accounting background, you're also a tax attorney, correct?
Brian Correct.
Dave: Correct. Okay.
Brian Yeah. And you know, some of the documents that need to be created, yeah. That can be done by a general corporate attorney like bylaws and those as well and or other organizational documents that aren't disc specific can only be done by any attorney.
But but if, but really it doesn't make sense to split that work up amongst different attorneys.
Dave: Okay. Sure.
Brian It all sort of be done by the same party to make sure that it's, that everything gets taken here.
Dave: Okay.
Brian And timely because there's a 90 day window to get this, in my opinion, to get this all done.
Dave: Yeah, to co to coincide with the election filing.
Brian Right. Because typically I don't provide any of the documents, including the election, to the, to the client until all these things are done.
Dave: Yeah. Oh, I see. Sure, sure. Because then there's,
Brian you know, they have to sign the disc election and there's all these other documents they need to sign and put in a minute book.
And so rather than piecemeal it, we just give it to them all at once.
Dave: Okay. So they've got their binder with all their signed documents or a signed copy of the 48 76 A that was filed a copy of the approval from the IRS. So now finally, are we ready to get started using our disc? Is there.
Brian Collection the I. Yeah. As you've probably seen in the news, things are changing at the postal service as far as postmarks and what they can be relied on as when something was considered filed. So they're not promising the postmark things that they, you drop them in the mail anymore.
Dave: Oh, really? Okay.
I hadn't heard that.
Brian Yeah. So it's recommended to go, like, walk it to a counter and have it hands stamped with [00:28:00] a postmark. Yeah. But more importantly, and unfortunately not everybody listens to this, send the form certified mail return receipt requested. 'cause many times document is sent to Kansas City and they lose track.
Oh, we never got your dis election. We can't process your dis return, whatever. And then there's proof that it was sent and then they have to, you know, find it basically.
Dave: Okay. Or
Brian at least accept it, maybe even if they never find.
Dave: Yeah.
Brian But
there's one other thing about the disc and that we didn't talk about and, and I'm reminded of it because something you asked me in passing last week, which is something about the year end of the disc, the year end of the disc must coincide with its principal shareholder. So if I have a C corp that's a fiscal year, but the owners of the disc aren't gonna be [00:29:00] individuals, that disc will be a calendar year disc.
Dave: Sure.
Brian Not be a fiscal year company. And you know, if. It's owned by, let's say an S corp that has a fiscal year, then the disc will have a fiscal year. It, it must have the same year as its principalship.
Dave: Okay. Yeah. Good. Thanks for the reminder of that.
Brian And sometimes the disc collection gets filled out incorrectly.
Somebody assumes one thing and, and then when a return is filed, the IRS, they're like, they, they dunno what to do. Yeah. Yeah. Okay. Alright. Now finally, do we have a little bouncing baby disc to be delivered to its proud parents?
I think so.
Dave: Okay. Okay. Okay.
Brian And that's usually, it's usually about three to five months after it was formed.
Dave: Okay.
Brian Is when it started eating solids.
Dave: Okay. Alright, so now we've got the disc set up and 9:45 AM I'm, I'm sorry, I keep touching my watch and it says the time, apparently it's time to just take off my watch. Okay. So now, so let's just say that they have not yet set up the bank account. They've done everything else, and now it's time to set up the bank account so they, you know, call their local banker.
They get it set up at the same bank, so it can be on the same online banking platform. And then they fund it. And does it matter where the funding comes, comes from for that bank account? Can they just like say the company. I mean, can just anybody fund it? Say there's three shareholders, can just one shareholder write a check for $2,500 to fund it?
Or how does that all look?
Brian Well, I mean, there, there will be a subscription agreement that shows how much each shareholder owes for their shares, and each shareholder should pay for them. Okay.
Can't just be one.
Dave: Okay. So we have the bank account set up, we're ready to go. And so now we're at the end of the year, or approaching the end of the year. Let's say we're in November of 2026. Anything we need to do before the end of the year
Brian for an accrual based taxpayer? No. Okay. There's nothing paid to do, but before the end of the year.
Dave: And what about for a cash basis?
Brian For a cash basis, taxpayer, if we want a deduction in 2026. We need to pay the DIS in 2026, so
Dave: we
Brian would need to gather information in order to estimate a DIS commission for 2026 before the end of the year.
Dave: Okay. So cash basis, that's what we need to do by the end of the year.
Accrual basis. Basis, no. Do I need to do [00:32:00] anything by the end of the year?
Brian You don't need to. You have an option to, if you'd like to, if you wanna have an idea of what the disc commission might be, or you actually wanna pay it before the end of the year, but there's no requirement.
Dave: Yeah. And if you don't, and if you don't pay it by the end of the year, you get a deferral benefit
Brian possibly.
Dave: Yeah so say, say you did a hundred million of exports and your commission was $20 million. You just get to defer that whole thing till the next year, right?
Brian No,
Dave: no. Brian, all you say is No. Every good idea have you just say No.
Brian It could defer 10% of it to the next year because only the income related to 10 million of export sales can be deferred, and it'd be a little less than 10% because the disc wasn't there the whole year.
So we'd have to prorate that 10 million for the number of days the disc existed. And then some sliver can be deferred, but the rest of it is gonna be taxed to the shareholders as a deemed dividend
Dave: in the current year. In the
Brian current.
Dave: Okay.
Brian Then not taxed when physically distributed in the following.
Dave: Okay, so we have an accrual tax payer.
We get into the to 2027, and let's say they're extending their corporate return and they're planning to file that in August of 27. So we're done. We don't have anything else to do before August. Right?
Brian That's not true either.
Dave: Brian,
Brian you're
Dave: killing me.
Brian Yeah, well, it, I mean, it depends. If nothing was done before the end of the year, then something needs to be done within the first 60 days after the accrual base taxpayer. Or, you know, let's say the cash base taxpayer says, I don't [00:34:00] care if I get my deduction next year, so I'm not gonna pay anything this year.
Something needs to be paid at this within 60 days of the end of the year.
Dave: So is this one of those things like the sales agent agreement, that that's just recommended?
Brian No, this is required.
Dave: Required. Okay.
Brian Yeah. This is required. This is, this is one of the hot buttons the IRS will try to use to disqualify your disc.
Dave: Okay.
Brian So the disc accrues a receivable at the end of the year, even though it doesn't know the amount at the end of the year for all, for, for disc purposes and books an an accrual for the income at the end of the year. That accrual or the receivable is only a qualified export asset if, if the payment rules around that receivable or satisfy.
Dave: Okay. Okay.
Brian One
Dave: rule Rules. Rules. There's always rules.
Brian Yeah. It's very draconian. You have a 60 day rule and a 90 day rule. 60 day rule says you must pay a reasonable estimate of the disc commission to the disc within 60 days of the end of the year in cash or. It could be cash, it could be a note.
Dave: And reasonable is just any old amount.
You just put your finger in the air and ah, I think a hundred dollars is reasonable.
Brian Again, that's not the case. There is a safe harbor for what is reasonable, and that safe harbor is f at least 50% of the final commission amount that you
Dave: determine. But how do you know that in February
Brian you have,
Dave: if you're not preparing the corporate,
Brian you have to try to compute an estimate before the end of FE
Dave: and you have to nail it exactly at 50%.
So if you think the commission's gonna be $1,217,412, you need to pay exactly 50% of that,
Brian at least. [00:36:00]
Dave: Oh, at least. So you could pay more. At
Brian least you could pay more. And we always recommend maybe paying 75 to 80%.
Dave: Okay.
Brian Because if you pay whatever you pay. That amount is gonna be your limit. So if you thought it was gonna be a million and you paid 500,000 and it turns out to be 1,000,500, too bad.
So sad, you only paid 500,000, you're capped at a million.
Dave: Okay? I mean, that's the safe harbor. I suppose there might be circumstances where, where one could argue that they maybe the first year of the disc, and you know, they, they,
Brian you can argue it, you can try to argue it, but there's no guarantee that the IS will accept any of the arguments.
And the private letter rulings that exist from the 1970s would imply that they, they're really not going to accept just about any rationale for being reasonable other than that 50% bright [00:37:00] line safe harbor.
Dave: Okay so you make the payment,
Brian make that payment, and.
Dave: Can you just book a journal entry? Do you, do you actually have to really move the money?
It sounds like a hassle.
Brian I mean, in, in general you have to, you have to either create a note or move cash.
Dave: Okay.
Brian Okay.
Dave: But that might be a lot of money though. Like what if, what if it's like $2 million and million? The company only has a million dollars in the bank.
Brian They could use the same capital multiple times.
Dave: Oh, okay.
Brian And roundtrip the money as many times as they need to, or like I said, use the, use the promissory note.
Dave: Okay.
Brian Short term promissory note to satisfy that requirement because it does say cash or property.
Dave: Okay. So we get through February, we've made our, our 60 day payment. We've, we've, you know, sh sh we've, we, instead of doing 50%, we did about 80% of what we thought it was gonna be to give us some cushion, and now we can go take a vacation till the till the corporate returns ready.
Brian Yeah. I, I, I think so.
Dave: Okay.
Brian I think so.
Dave: Okay. So it's time to now. So it's time. Now, if they extend that corporate return, I guess they're gonna have to extend the disc return as well.
Brian Well, the disc return is due September 15th as a matter of course.
Dave: Oh,
Brian are handy. There are no extensions. So really as far as the disc and its compliance goes, once you make that 60 day payment, there's really not much you can or should do or are able to do until the related entities tax return.
Prepared. [00:39:00] So a lot of times they'll say, well, that's not gonna be done till September 15th, and we have to have a discussion about how that doesn't work because the disc return has to be done by September 15th, but in order to do the disc return, you need to basically a completed within it supplier returns.
So then we have to work backwards from September 15th to figure out like when's the latest they can have that, that other return done in order
Dave: to
Brian get the disc return done. Now that's relatively easy in the past through context because all those pass through returns are also due September 15th on extension.
Dave: Sure.
Brian Whereas a C corporation, it's not so easy because the extended due date for a C corporation, if it's a calendar year is October 15th. So it may be that you have to file a disc return with a made up number on time and then amend it after. Okay. After September 15th. I've done that a number of times.
Dave: Okay. So that makes sense.
Brian Because as is good as CPAs are, they're deadline driven. So if a return is due October 15th, they're unlikely to have it done by the end of August.
Dave: Yeah. Okay. So it's time to file the disc return. I assume the CPA firm probably has that disc return and their standard tax software with all the other forms.
So you just have the CPA go ahead and prepare the disc return. I've looked at it, it's a short return. It's like 10 pages long. So you just go ahead and have the CPA prepare the disc return, then bing, bam, boom, you're done.
Brian Could do that.
Dave: Okay. Is there a drawback to doing that?
Brian Yeah, it would probably be wrong.
Dave: Okay. Why do you say that? Now, remember [Brian, we have a lot of CPAs who we have very good relationships with that we share clients, you know, saying that they're probably gonna do it wrong. I mean, heck, I don't really wanna annoy all my great CPAs we work with
Brian Well, okay, but it, well, it's just a fact. It'll probably okay
Dave: be
Brian wrong because they might see one or two or three a year.
They, they think they know what all the different terms on the district return mean, but they're not as familiar with that as they are with a S Corp return or a partnership return, or 1120. So they do what they think is right, and it may be right, it may not be right. So again, I, in my opinion, you want a specialist preparing the district return.
Dave: Okay.
Brian Okay. Because we know exactly how it's supposed to be filled out. And then if, if the calculation is done on a transaction by transaction [00:42:00] basis, there's this schedule P that gets attached to the return. Well, if you don't do a T by T, there's one Schedule P. If you do a T by T, there could be thousands of them.
So I don't think CPAs and their software are equipped to complete thousands of schedule Ps and attach
Dave: Yeah.
Brian To the district.
Dave: No, good point. And you're, you're getting your your enthusiasm to get to T by t had me, you got a little ahead of me. 'cause I was gonna ask, so client says, Hey, we have a desk.
Our accounting department's busy. What's just the bare minimum of information we need to send you? What's the bare minimum?
Brian Bare minimum would be qualified export sales.
Dave: They just need to send you a number.
Brian Yes.
Dave: Then you take that number and how hard can it be? Right. Just take the,
Brian it's not, it's not necessarily that hard at that point.
Dave: Yeah. But say the profit on those sales [00:43:00] is the average profit of the company and taxable profit. And you compute the disc commission, you go through the Schedule P and compute the disc commission and pick the higher of the two numbers that you, that you compute. So you would just be like the final draft, corporate return and that total export number, you know, dollar amount for the year.
And, and that's really all you need to, to do. That's
Brian the bare bone. That's the bare bones, yeah.
Dave: Okay. And that's what some people would call the standard calculation or a simple calculation,
Brian I'd call it simple. Yeah.
Dave: Okay. And that's also known as the 4% 50% calculation in some circles. Right. How does that work?
Brian Well, it's also known as the safe harbor calculation in certain circles as well. Back to that,
Dave: back to that safe harbor again.
Brian Yeah. But that's actually not a safe harbor, so that's why I bring that up.
Dave: Okay, well
Brian that's the safe harbor calculation. I'm like, no, it's not. It's just the [00:44:00] calculation. There's nothing safe harbor about
Dave: it.
Okay.
Brian Okay. It's just the rules that are found in the code and regs for computing and disc commission, and they're the two predominant methods. 4% of sales and the 50% of net profit,
Dave: you just cherry pick whichever one works better.
Brian Yeah, but the 4% method has limitations. So
Dave: more limitations probably. Why? Why can't this just be simple?
You said it was the simple calculation and now you're already telling me there's inherent complexity.
Brian Even if it's simple, it's not totally simple.
Dave: Okay. Okay,
Brian so the, and I've seen this done wrong. Millions, well, not millions, hundreds of times, and I can say it is hundreds of times. Client computes the 4% method just by choosing 4% of sales.
They don't look at what their net income is on the, on the [00:45:00] activity. They just say, oh, I'm allowed to use 4% of sales.
The limit there is you cannot create a loss. There's something called the no loss rules. You can't create a loss with a disc commission if one doesn't already exist. So if the profit on, say, on the sales are 2% of sales, you can't take 4% of sales. You're limited to 2% of sales. And if, for example, you have a loss of the company, you're limited to zero.
But I've seen situations where that's completely ignored.
Dave: Okay?
Brian Properly computed this commission of 4% of sales, but it should have been something less or possibly zero.
Dave: Okay? So more complexity, but the good news, that's the extent of the complexity. One, schedule P, 4%, 50%, you know, make sure you, you don't create a loss.
Now we're, we're all done. Pop. You [00:46:00] know what, what? Dusted and dusted and delivered we're, we're good to go. They've maximized their dis commission, right? And we're all done. They have a nice 10 page return to send to the IRS. Which by the way, can they file that electronically, that return?
Brian Fortunately, there are no provisions for electronic filing of the disc return.
It must be,
Dave: what is this, the 1970s or something?
Brian Pretty much
Dave: Okay
Brian with, with regard to the disc? Yeah. And, and some other forms. Yeah. But the, the, the benefit of that, here, I'll give you a benefit. The benefit of the fact that you must file a paper return is they can have an electronic signature on it. Okay.
It doesn't have to have a wet signature.
Dave: Okay? Okay.
Brian So you could theoretically, for example, send your client the return using DocuSign, have them sign it. You print it, you file it for,
Dave: okay. Okay. But, but now we're finally done. It's signed, it's done. And they say, boy, thank you very much, Brian. You've done, your team did a great job, and boy, I really appreciate, you know, we had 10 million of exports.
We have all kinds of variability in our profit margins. And, but thank you very much. You, you created the amazing $400,000 or you calculated the 400,000 disc commission. Thank you very much. I couldn't imagine you went above and beyond. I couldn't imagine you could have done anything more. And then what do you say?
Do you graciously say, oh, you're welcome. It was our pleasure.
Brian I would graciously say, you know, we, we've just computed your minimum disc commission.
Dave: Okay,
Brian not your maximum. Because you have
Dave: vast, lemme guess. Lemme guess. There's more complexity coming.
Brian More complexity, which relies on more data being.
Pulled from the client's [00:48:00] records to, to allow for a calculation of the DISC commission at a more detailed level, ideally at a line item by invoice level,
Dave: line item. That sounds like a lot of work.
Brian It can be. Can be
a
Dave: lot. What if the client says, our accounting department's busy? Sounds like we're gonna have to spend weeks gathering all this data for you.
Eh, it's just, we're too busy, it's not worth it. What do you say then?
Brian I gu I almost can guarantee you it will be worth it. Okay. Because looking at the detail is likely to cause at Disconnect commission to be anywhere from 50 to three, 400% higher than what it otherwise would've been. Now, unfortunately, in that first year, since you've already filed with a certain number, you're limited to two times what you paid in that 60 day window.
But going forward. You know, there's no limit.
Dave: Okay.
Brian Whatever we compute can be your disc commission. So different industries have different amount of variability and t and transaction by transaction calculations have different impacts depending upon the industry, the profitability of the business, how many products they have, who they sell to.
But it can vary. But I'll give you an example of one that we worked on recently where company had a hundred million of export sales. They took 4% of sales, and they've been taking 4% of sales year after year, after year, after year, after year,
Dave: okay.
Brian They brought us in like three weeks before the district return.
Dave: Okay.
Brian And we went through the calculations and we actually calculated 17 million
Dave: as opposed to 4 million.
Brian As opposed to four.
Dave: [00:50:00] Yikes. That's a big difference.
Brian It's a huge difference. And fortunately they were, you know, well, I mean they were very pleased with the result. And so now on a going forward basis, we're not doing 4% of sales.
Dave: Okay? But you still have this. But if they were able to get a $17 million commission, then that means their corporate taxable income must have been at least 17 million. 'cause didn't I hear you say the disc commission cannot cause a loss.
Brian It cannot cause a loss at the level at which you're computing the commission.
So there's no, you're killing me, Brian. Just more complexity. Yeah. Well, it's very complex area. There's, there's no overall no loss rule. Like if you, you can, as long as you're meeting the rules as they're written, you can cause your entity to go into a loss position. Now, this particular instance, it did not do that, but [00:51:00] you could do that.
Dave: Okay. And then if you get into a loss position, there are other non disc complexities that come into play that impact whether you want to maximize the loss in that entity or you want to target a particular loss in that entity. And that's not something that we get involved with, but we're certainly sensitive to it.
Sure. Sure. And so you're saying for this client, even though I've heard some people say you've got the simple calc and then the hard calc. And so you'd wonder why would anyone do the hard calc? Well, it's because their commission went from 4 million to 17 million, which saved them hundreds of thousands of dollars.
You created hundreds or millions of dollars with additional tax savings.
Brian Right, right.
Dave: Okay.
Brian And by the way, after the first conversation we had with them, they said, oh [00:52:00] yeah, this is not something we can do. The accounting department said, this is not something we can do. Then the owner said, this is something you're gonna,
Dave: it's funny how that, how that works.
Okay. And then I'm guessing this extra work. You, you're probably gonna have to create another schedule P or two. So now the disc return, it's gonna be 10 pages. It's what? 20 pages? Is that kind of a typical page count?
Brian No, it could be
Dave: no.
Brian Thousands of pages.
Dave: Thousands. I mean, Brian, a ream of paper is 500.
So thousands would be reams of paper.
Brian Yes. I've had some returns that have like 15 binders of paper.
Dave: Yikes.
Brian Yeah. Just goes in a big box and I'm sure the IRS types, all those schedule Ps into their,
Dave: I'm sure they do. Okay. So the return gets filed, so the return's ready. You take that box, you just slap a you print off a postal label online, drop it off at the post office.
And you're done, right? You just give it to carrier,
Brian understand,
Dave: carrier, carrier your house or whatever.
Brian Well, you can send it via FedEx. You can send it via UPS. And actually, in some ways, I think that might be better these days than the postal service.
Dave: And why do you have to do that? Can you just slap, I mean, if you have your 15 binders, couldn't you just put a hundred stamps, you know, on the, the box and ship it in because they'll get it, right?
I mean, it's not like they're gonna lose it or anything.
Brian They might, they could very well lose it. And you definitely want proof of delivery and you want proof of mailing. So again, it's a certified mail if you're using the postal service or if you're using a private carrier like FedEx, you know, you get all that documentation about when it was shipped and when it was delivered.[00:54:00]
Dave: Okay, well now at least we're finally done. Right? You ship it off. The CPA pulls the numbers from the disc return, puts it on the corporate and shareholder returns. Now we're done. It's gone to the IRS. We never have to think about it again. Right.
Brian I'm not sure if that's a trick question or not, but in some ways that could be true,
Dave: right?
Yeah. But it, but I guess you could get audited, right?
Brian Could get audited by an agent who has no idea what they're doing, which is typically the case.
Dave: So that's why you want your CPA defending you in that case. 'cause then it's like the blind leading the blind.
Brian No, I think it's better if someone with site is involved.
So again, the specialist who did the disc work should represent the taxpayer or be involved with the representation of taxpayer in the case of the audit.
Dave: Okay.
Brian And the should be involved. Because really what's under, what's really in question is the [00:55:00] deduction on that entity's tax return. The dis itself doesn't pay tax.
So they rarely audit a dis quote.
Dave: Okay? So if I break it down, you to do it really right? You need a specialist to guide you on the initial structure of the disc. You need another specialist to set up the, the disc. You need another specialist to do all the paperwork, make sure the document's correct another specialist to prepare the return, and then another specialist to defend you.
So is that about right? So do you need like five different people to make sure everything's done right? Brian? Isn't there some way that you could just have one person that could just do it all for you and be done with it?
Brian Well, of course.
Dave: Okay. Finally, finally, I get a simple answer,
Brian right? So if you, if you engage a disc specialist, that [specialist should be able to do all that.
Dave: Okay?
Brian Okay. Now, not every disc specialist is created equally.
Dave: Sure.
Brian You know, I brought up during our conversation that there are some non disc things that can also add complexity to the situation. Not every disc specialist will be sensitive to those things. Not every disc specialist will understand those things.
So the benefits that like our organization brings is that. Least myself in particular, I didn't always just do IC disc work. I, I, I have a well-rounded knowledge of all of the, of the tax world. And so I am sensitive to non disc things. You know, for example, you know, another example, oh, a company has a lot of export sales.
You would think it's a no brainer. They should have a dis, they should use the dis. They should, they, they should want to convert that ordinary income to qualified dividend [00:57:00] income. Well, what if the S-corp is owned by an ebit? What if there are passive shareholders? All of those things impact whether the disc commission actually helps or hurts their tax situation.
And I would get, I would venture a guess that, you know, if you went out and Googled, you know, I see this specialist, you would find a handful. At most that understand all that stuff and how all it all interplays together as opposed to the multitude of those that won't understand any of it.
Dave: Okay.
Brian So I think a, a disc specialist that is sensitive to all the other tax rules is, is definitely something that is valuable.
Dave: And you probably want someone with some experience who's done maybe, you know, what a dozen disc returns in their career, maybe 50 if they're really good. Like how many, how many have we done organization wide? Probably
Brian probably 10,000.
Dave: 10,000? Well, that's a lot more than 50.
Brian Yes. Over the years it's probably close to that number.
And we've probably claimed billions of dollars of just deductions and saved clients, hundreds of millions of dollars of tax. And, and I'm proud to say that every dollar we've ever claimed we've. Okay.
Dave: So
Brian I've never had an adjustment from the IRS.
Dave: Well, that sounds like a, a good a good record. So bottom line,
Brian that's, that's the best you can come up with a good record.
I'd say it's
Dave: well, I didn't wanna say a perfect record. I didn't want to jinxy.
Brian No, but it's, it's, it's, it's pretty outstanding record.
Dave: Yeah. It's a, it's an impressive record
Brian because there are also just providers out there that say, well, you know,
Dave: it's the Wild West.
Brian The wild west, the IRS doesn't really understand it, so let's be as aggressive as possible.
And, and that's not the way we approach it.
Dave: Yeah. Wow. Well, this has been this has been a lot. So really it's that simple. So the person who wants to just do all this themselves, we've laid out the whole playbook for them.
Brian Yeah. The only simple thing they have to do is call us.
Dave: There you go. That is it.
Yeah. And, and oh, the other thing, not only are you the Bob, hope you now have moved from number two to number one for the most experienced icy disc guy. I know now that Neil Block is retired.
Brian Well, that's, I don't know if that's a plus or not. Whether I'll take it just means I've been doing it a long time myself.
So
Dave: yeah, Neil was, I think my second, first or second guess. And and I was just happy. 'cause his billing rate back then was like $1,500 an hour. I was just glad I didn't get a bill a month later for him being on the podcast. But he, [01:00:00] he did it for exactly 50 years at one firm, baker and McKinsey in Chicago.
He had one office, one phone number, like the whole 50 years.
Brian Yeah. That's,
Dave: that is something you don't see much anymore.
Brian Definitely not, no. It's, but it's very, that's. That's very cool. And Neil is a very, you know, is a very intelligent savvy guy.
Dave: Yeah, that is for sure. Well, Brian, anything else that we didn't cover that you can think of?
Brian I can't think of anything. I think we covered a, a great deal here.
Dave: Okay.
Brian Can't think.
Dave: Well, I, I'll let
Brian we omitted.
Dave: Well, great. Well, hey, thank you so much for your time. Really appreciate it. And I'll let you get back to your, your exploration of your yard there.
Brian Yeah. I feel like, it's funny I shrunk the kids.
Dave: I know. Well, hey, well, well again, thanks again, Brian. We all appreciate your time.
Brian You're welcome. Have a good day.
Dave: You too.