Multiple Considerations of Working From Home
Wish I had come across this article in the late spring. Regardless, I think it is worth exploring in an effort to keep us all on the same page and avoid some of the inevitable surprises.
-Mark Bradstreet
Millions of employees could be in for a rude surprise in April when they find out their home office isn’t deductible and the states can’t agree on who gets their money. Time to put a tax pro on speed dial?
It’s very likely that you're reading this from your home—even if you're working. As the coronavirus pandemic continues to spread across the country, many of us are finding that the new normal means not leaving the house, or at least not for work anyway.
How dramatic are the numbers? A Federal Reserve Bank of Dallas report found that of all those employed in May, 35.2% worked entirely from home, compared to just 8.2% in February. Further, a whopping 71.7% of US workers who could work from home did so in May. Some folks who are staying home do so for safety and convenience, while others are required by their employer or the state or local government to remain at home; in Pennsylvania, for example, by Order of the Governor, "Telework Must Continue Where Feasible."
With big name companies extending work-from-home until the end of the year, next summer, or as an option for a growing number of workers, forever, ad hoc accommodations no longer seem sufficient—on either a personal, or a tax policy level.
Here’s the latest on the sometimes-confusing tax aspects of work-from-home, as well as some practical tips I’ve picked up as a tax lawyer and writer who has long worked from home.
UNDERSTAND THE LEGAL RELATIONSHIP BETWEEN YOU AND YOUR EMPLOYER
Increasingly, the lines between employees and independent contractors (or freelancers) are becoming blurred. To be clear, you are not self-employed just because you are working from home. If you are receiving a paycheck from an employer, and those wages will be reported to you and to the Internal Revenue Service on a W-2, you are an employee. Working from home is not enough, on its own, to make you an independent contractor receiving a 1099. And while you certainly may receive a Form W-2 and a Form 1099 in the same tax year, you should not receive a Form W-2 and a Form 1099 for the same type of work from the same employer.
Why does it matter? As a result of the Tax Cuts And Jobs Act (TCJA), a.k.a., the Trump tax cuts, for the tax years 2018 through 2025, you cannot deduct home office expenses if you are an employee. There is no hardship exemption or coronavirus waiver. It's a very bright-line rule: employees who work from home can no longer claim the home office deduction. The reason you are working from home does not matter to the IRS.
However, if you are self-employed - even as a gig worker - you can continue to deduct qualifying home office expenses. (More on that later.)
ASK YOUR EMPLOYER WHAT YOU CAN TAKE FROM THE OFFICE.
Clearly, you can’t take home the snack bar. But if you're missing out on some of your favorite things - like your office chair or your trusty stapler - ask your employer if you can take them home. That can save you (and your employer) money. The TCJA rules apply to all unreimbursed job expenses for employees, not just to your physical home office. If you’re an employee and your employer doesn’t reimburse costs, your out-of-pocket expenses - from the cost of a new laptop or printer to copy paper to that fancy new ergonomic chair - are not deductible for federal income tax purposes. But if your employer has already spent the money to buy them for you, simply relocating them to your house means everybody wins.
FAMILIARIZE YOURSELF WITH YOUR BENEFITS
Does your employer offer you a monthly reimbursement for cell phone costs? Is there a stipend for home office expenses available? Is there a discount available for office supplies purchased through a particular vendor? If your costs are going up because you're working from home, consider your options. Some money-saving measures may already be available through your company's HR department. If you don't see what you're looking for, just ask. An enlightened employer may well find your reasonable requests a lot more economical than finding a replacement for you or finding that without the proper equipment, you’re less productive.
It's not just the home office deduction that is creating confusion among those working from home. Employees who normally work in an office in one state, but live (and are now working from) another may be facing additional tax-filing complications.
IF YOUR OFFICE AND HOME ARE IN DIFFERENT STATE. PUT A TAX PRO ON SPEED DIAL.
The messiness of being taxed in multiple states is at least on Congress' radar; the HEALS Act proposed by Senate Republicans last month would allow employees who perform employment duties in multiple states to only be subject to income tax in their state of residence and any jurisdiction where the employee is present and working for more than 30 days during the calendar year—or 90 days for frontline health-care workers. (That 90-day provision is designed to protect nurses and doctors from other states who raced to New York in the spring to help out and now worry they’ll owe New York taxes.) The HEALS provision would only apply through 2024 and wouldn’t cover professional athletes, professional entertainers, qualified approved film, television or other commercial video production employees, or certain public figures. And even that bill, which is going nowhere, would still allow employees working from home during the pandemic to be taxed in their home state and the state where their normal office is.
Bottom line: there is currently no national standard for the withholding, filing and payment of state income taxes for employees who work in more than one state or work in one state and live in another. That means you may have tax requirements where you typically work as well as where you live. Usually, you can sort that out via withholding, tax agreements, and credits.
So, what if working at home in one state when your company is in another state means that you're subject to tax in both places? If either state has a physical presence rule (most states do), figuring the split between the two can be confusing. Typically, you may have too much tax withheld from your paycheck for your nonresident state and not enough for your resident state.
For example, if you live in Connecticut but you normally work in New York, you'll likely have to file a resident tax return in Connecticut and a nonresident tax return in New York. If you worked in New York all year, it should be relatively easy: only New York withholds taxes and then when you file your Connecticut tax return you get a credit for the taxes paid to New York. But if you worked in New York through March - and then in Connecticut through August - and then back to New York? Not so simple.
And remember the tax credit? To make it work, you have to file in the right order. You first file and report income to the state where you work and then claim the credit on your resident tax return. If you mix up the order, you may end up missing out on the credit and get stuck paying additional state tax, or miss out on a refund you’re otherwise entitled to.
Moreover, that assumes that the states agree on the rules. It gets more complicated when states have differing tax rates and residency rules.
So, you could try to figure it out yourself… but the American Institute of Certified Public Accountants (AICPA) just updated their guidance on state tax filings, and it's 523 pages long: it's a lot less stressful to hire a professional.
KNOW YOUR STATE’S TAX LAWS
I know that I just advised you to hire a tax professional, but you should still be aware now of the basic rules in your state to make sure you don’t get a nasty surprise in April. During the pandemic, the AICPA developed recommendations that would allow businesses to continue to withhold state income tax from employees based on the employer's location instead of the employee's work-from-home location - in other words, under these recommendations, your tax and withholding wouldn’t change at all. To date, 13 states (AL, GA, IL, IN, MA, MD, MN, MS, NE, NJ, PA, RI, and SC) have issued guidance that follows the AICPA's suggestion on withholding. What that means is that employees in those states should be protected from paying double tax where one state uses the convenience of employer test (like CT, NY, DE, NJ or PA) and the other state uses the physical presence standard (remember, states use different tests). But if you live in a state that has signed on to this recommendation - but work in a state that hasn’t (or vice versa) - you’re out of luck.
In addition, a slightly different list of 13 states (AL, GA, IA, IN, MA, MD, MN, MS, ND, NJ, PA, RI, and SC), as well as Washington, D.C. and Philadelphia have followed AICPA's recommendation that an employee working remotely in a state due to Covid-19 restrictions does not create nexus and apportionment for his or her employer for tax purposes. (In other words, by allowing you to work from home, the employer will not create corporate tax problems for itself in your home state.)
Some states also have individual reciprocity with other states. For example, Pennsylvania has agreements with IN, MD, NJ, OH, VA and WV. Remember, normally, if you earn income in one state and live in another, you file a tax return in both the state where you live and, in the state, where you work. However, if you’re lucky enough to live in a state with a reciprocity agreement with the state where you might work, you file and pay only in your home state: you don't have to pay taxes - or even file - in the state where you work. So, if you live in Pennsylvania but work in Ohio, your employer would withhold tax for Pennsylvania, while Ohio takes a pass. Easy peasy.
But if you live and work in states that don’t have reciprocity - and haven’t signed onto the AICPA recommendations - you may have to file tax returns (and possibly pay) in both states. You’ll need to know which rules apply to avoid a surprise—and maybe a big bill- at tax time.
KEEP A CALENDAR OR A LOG
Sure, there may be a day when you want to look back on all of this with fondness, but there's a more practical reason for keeping good records: you may need to keep track of your day by day working locations for tax reasons. Proving that you were where you claim to be can be handy if you (or your employer) is audited. Plus, keeping a log could keep you from falling prey to the habit of working seven days a week.
CHECK YOUR WITHHOLDING
Ask now - not later - about withholding. Find out how much is being withheld by your employer for the state where you live (and now work) and whether that will be enough to avoid a tax bill come Tax Day. If not, you may need to make estimated payments to avoid a penalty.
Warning: If you normally work exclusively from an office in another state, work from home might increase your home state liability for 2020. But it’s not all gloom and doom: if your home state has a lower tax rate than the rate where your office is located, working at home for much of 2020 could save you taxes.
DON’T FORGET ABOUT SECURITY
The IRS recently issued a reminder to tax professionals who work from home to secure remote locations by using a virtual private network (VPN) to protect against cyber intruders. That's good advice for anyone who relies on the internet. A VPN provides a secure, encrypted tunnel to transmit data via the internet between a remote user and the company network. VPNs are critical to protecting and securing internet connections. Failure to use VPNs can result in remote takeovers by cyber thieves, giving criminals access to your entire office network.
DON’T DO ANYTHING DRASTIC
The loss of the home office deduction for employees has some taxpayers wondering whether it makes sense to quit their day jobs and become self-employed. That's an individual decision, but if you're focusing simply on the home office piece, the numbers probably don't support that kind of shift. For more to consider when it comes to business-related decisions in light of tax reform, check out this article.
What if you really are self-employed—meaning you get a 1099 and not a W-2. Then you would report the home office deduction on federal form 8829, Expenses for Business Use of Your Home, which is filed along with your Schedule C, Profit or Loss From Your Business, on your 1040.
GET COMFORTABLE
My home office has undergone a transformation since March. With a full house, I found that I needed more soundproofing, so new carpeting and drapes were a must. I also needed better headphones. Don't be afraid to spend where practical. The TCJA did not change the home office expense rules for self-employed persons and independent contractors. Those expenses are deductible so long as they otherwise meet the home office deduction criteria.
CREATE BOUNDARIES
I'm not just talking about virtual boundaries (like turning off your phone after hours) but actual, real, physical barriers. Being able to shut a door, put up a room divider, or even put on a pair of noise-canceling headphones can be an essential way to create your workspace and signal that you shouldn't be disturbed. Moreover, if you’re self-employed and angling for a home office deduction, it's not only desirable, it's mandatory: to claim a federal income tax deduction for a home office, you must use a specific area of your home exclusively for your trade or business.
It doesn't have to be a separate room (like mine), but it must be a separately identifiable space (like my husband's desk). You do not meet the requirements if you use the area in question for both business and personal purposes: it must be space that is used solely for business and not, say, an office or desk or computer that is also used by your children for their virtual lessons or to play Fortnite.
I've always had a separate home office and I have a separate phone line for my office, which makes it deductible as a business expense. But if my husband uses our primary phone for business, he’s out of luck: the IRS has consistently taken the position that your primary phone land line is never tax deductible even if you don’t use it for anything else.
Our internet connection is shared, so, like my utilities, I can’t deduct the whole thing as part of my home office deduction; it must be pro-rated. An upgrade in service to make it faster could also be pro-rated. Also, I can confirm that relying on a stable connection with two teleworkers and three students in virtual school can be challenging at best. If you are also like us that uses internet for work and business, check the sky business broadband.
DON’T GO IT ALONE
Even if you - like me - spend time working from home normally, you're still likely used to seeing a friendly face or two. During the year, I attend conferences and bar functions, meet with clients, and chat with my paralegal. It is, quite frankly, weird to simply stay at home if you're used to having people around. It helps to have opportunities to meet up - even if it's virtually - with your colleagues. Take time to engage on social media (I highly recommend #TaxTwitter for those who work in tax) and say yes to virtual events (like a #virtualtaxpro happy hour). Socializing is healthy, and you can learn a lot from your fellow workers who are going through the same thing. We're all learning as we go.
SET OFFICE HOURS
My hours are very nearly the same as before. I make it a point to get up at the same time every morning and sleep at roughly the same hours each night (though a few late-night drops of thousand-plus page coronavirus stimulus bills have admittedly kept me up reading). But normalcy is important to me. It also helps my kids know when it's okay to ask questions for school or alert me to the fact that Bayern won the Bundesliga.
Credit given to: Kelly Phillips Erb. Published in Forbes on Aug 12, 2020.
Thank you for all of your questions, comments and suggestions for future topics. As always, they are much appreciated. We also welcome and appreciate anyone who wishes to write a Tax Tip of the Week for our consideration. We may be reached in our Dayton office at 937-436-3133 or in our Xenia office at 937-372-3504. Or, visit our website.
This Week’s Author, Mark Bradstreet, CPA
–until next week.