Startups Beware: The R&D Credit Study Deception

We have prepared tax returns for over 3,000 early-stage startups and see many R&D Credit Studies done by newly-formed R&D Study firms – we will collectively call them the “usual suspects.”  You can look at an R&D Study as an insurance policy for your R&D Credit.  If your startup is ever audited and cannot produce the proper substantiation for your R&D Credit, in the form of an R&D Study, the IRS will disallow parts, or all, of the credit, and you will have to pay it back with penalty and interest.

The usual suspects are typically headquartered in the Bay Area, have great looking websites, use gadgets such as connecting to your Gusto, QuickBooks, etc., and may offer to fund a small piece of your credit upfront (but reduces that advance by 100% of their fee – not a good deal). They are great at selling and charge a fee of 20-25% of the R&D Credit (so you would pay them $25K for a Study that produced only a $100K R&D Credit).

However, all this really means nothing when you are facing an IRS audit.  The only thing that matters is the quality of your Study – will the IRS accept it? Or will it disallow a portion or all of your R&D Credit?

After reviewing a number of these Studies from the usual suspects, we highly doubt they would survive an audit.  Subsequently, the IRS would disallow the R&D Credit and demand their money back plus penalty and interest.  This frequently happens when there is a lack of substantiation/documentation. 

After taking a closer look at a sample of studies from the usual suspects, we found three key reasons why the IRS would disallow them:

  1. All the Studies that we reviewed were 99% boilerplate (copy + paste). The IRS has warned several times about this practice and will always throw out boilerplate Studies.
  2. There was no contemporaneous timekeeping info (the IRS gold standard for Studies). Looking at these boilerplate R&D studies, you would not know if the employee worked for a bakery or a software company – the job description and the R&D performed were 100% boilerplate.  The IRS would never allow.
  3. There were no adequate descriptions of the type of R&D conducted. One boilerplate R&D Study by a usual suspect comically used five (yes, 5!) words to describe the R&D. The IRS would never allow this and would disallow the credit.

Do NOT waste your money or time on these boilerplate Studies.

As previously mentioned, the only reason to pay for a Study is to have insurance if you are ever audited. We have been through a ton of IRS audits, and trust us, you have no chance with one of these boilerplate Studies. To add insult to injury, you are going to pay a HUGE fee for the Study.

For software startups needing an R&D Study, we exclusively refer eTaxConnect. They use the info already present in your version control system to generate a Study that is 100% IRS-compliant and audit ready.

Through contemporaneous timekeeping info, detailed R&D descriptions, no boilerplates, and only about 30 minutes of management time, eTaxConnect can produce a study that will stand up to any IRS audit.

If you have 10 developers and your R&D payroll is $1M, the eTaxConnect fee is about $3,500 vs. $25K for a useless boilerplate Study from one of the “usual suspects.” 

Do not get deceived and misled by their aggressive marketing and misleading claims.

What is the California Water’s Edge Election?

What is the California Water’s Edge Election? And should your startup use it?

Many startups we work with operate in the state of California and also have foreign subsidiaries. This can lead to complex tax situations, including the issue of determining income for the unitary group of corporations (typically consisting of a U.S. parent corporation and one or more foreign subsidiary corporations). The U.S. parent corporation must decide whether to determine CA income on a worldwide basis or a water’s edge basis. 

California allows corporations to elect to compute income attributable to CA sources on a water’s edge combined report (Form 100W, instead of Form 100). This election results in the exclusion of affiliated foreign corps from the combined CA report, since they are usually not subject to CA tax. This means only the U.S. corp would be required to pay CA tax on its own CA sourced income. The election is made via Form 100-WE and must be attached to a timely filed original return Form 100W. The election lasts for 84 months (7 years). 

Given the length of the election, it is important to consider which method will be more beneficial in the long run.

  • If the foreign sub is in a loss and is expected to continue generating losses for years to come:
    • Including the loss on a worldwide filing could be beneficial by reducing total taxable income.
    • Important note: If the foreign sub is currently in a loss, but is expected to start generating income soon, you may want to opt for the water’s edge election for the reasons listed below.
  • If the foreign sub is generating income:
    • Including the income on a worldwide filing would not be beneficial. This could end up increasing taxable income apportioned to CA.
    • However, it’s important to note that the foreign sub’s sales could dilute the CA apportionment factor, which may offset some (or all) of the increase in income.

For example, let’s take a look at a California C corp with one foreign subsidiary corp (100% owned) located in the United Kingdom. The CA entity has $100,000 in net income and $500,000 in sales (all in CA). The foreign sub has $50,000 in net income and $150,000 in foreign sales. Let’s see the impact of the water’s edge election below.

Water’s Edge ElectionNo Election (Worldwide)
Income (Loss) from foreign subExcludedIncluded
Sales apportionment factorExcludedIncluded
CA apportionment %100%76.92%*
Net income on CA return$100,000$115,385**

*500,000 CA sales divided by 650,000 everywhere sales = 76.92%
**150,000 in net income multiplied by 76.92% apportionment = $115,385

Let’s look at the same example, but say the foreign sub has a $50,000 loss instead of profit.

Water’s Edge ElectionNo Election (Worldwide)
Income (Loss) from foreign subExcludedIncluded
Sales apportionment factorExcludedIncluded
CA apportionment %100%76.92%*
Net income on CA return$100,000$38,462**

*500,000 CA sales divided by 650,000 everywhere sales = 76.92%
**100,000 – 50,000 = 50,000 in net income multiplied by 76.92% apportionment = $38,462

When the foreign sub is generating a profit, taking the water’s edge election is more beneficial, as the foreign income is excluded from the CA return. However, when the foreign sub is in a loss, it is more beneficial to not take the election. There are a number of complexities and nuances to consider before making the California water’s edge election, many of which are outside the scope of this article. Please consult with a qualified tax professional before making any elections.

IRS Circular 230 Disclosure

To ensure compliance with requirements imposed by the IRS, we inform you that any U.S. federal tax advice contained in this document is not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code, or (ii) promoting, marketing, or recommending to another party any transaction or matter that is contained in this document.

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