Choice of Entity:
Legal Concerns Associated With Founding A Mining Business
January 21, 2018
You're probably wondering, what is the most efficient way to structure a new mining business. While the facts do vary, in the most instances, the answer is as an S-Corporation. Odds are, you're either thinking about setting the business up as an LLC or an S-Corp. Although many think the tax consequences are the same because these are both pass through entities, this assumption is false.
S-Corporations are usually going to the be the most efficient tax vehicle for a new mining business. The reason for this is self-employment tax.
LLC co-venturers must pay self-employment tax, in addition to their normal individual rate tax, of approximately 17% if they provide a 'service.' Mining is a service!
Why is Mining A 'Service'?
At first glance, mining may seem like a passive activity. All you do is plug in the miner and it runs in the background all by itself with little to no maintenance required. Where's the service?
The easiest way to conceptualize mining as a service is to think about the actual passive version of investing in whatever cryptocurrency one plans to mine. Truly passive cryptocurrency investing simply entails buying a cryptocurrency on an exchange and holding it with the hope of turning a profit. Unlike mining, passive cryptocurrency investing requires no specialized hardware, limited internet connectivity, and minimal power inputs (just the amount required to use your computer to access the internet to buy/sell the cryptocurrency).
Unlike investing in cryptocurrency, mining is a business like activity (although in certain instances, it may only constitute hobby income; see section 183 of the Internal Revenue Code and the associated Treasury regulations for more information) that utilizes high tech machinery to solve a variety of complex equations and hash functions. In exchange for solving these equations, miners are rewarded with blocks of cryptocurrency that function as rewards. The cryptocurrency network benefits from miners (unless using a pure Proof of Stake framework, but that is outside the scope of this article) because miners process network transactions in a way that helps secure network stability and security.
To hammer the point home, Bitcoin would collapse without miners. Think about the magnitude of that statement. Mining is an essential service for a multi-billion dollar asset class that benefits the national investing public AND the international investing public. Thus, mining is a service.
Why Does It Matter if Mining Is A Service?
Knowing that mining is considered a 'service' is important when deciding what sort of limited liability entity to use when forming your client's mining business because it drastically affects their future tax liability.
Self-Employment Tax Implications of Operating a LLC
LLCs are generally seen as desirable entities for new businesses because of lax corporate governance requirements, extreme freedom of contract, and favorable pass-through tax treatment (unless the founder elects to 'check-the-box' to be taxed as a corporation on the appropriate documents). Additionally, single member LLCs are seen as disregards and have a special tax treatment that will be discussed further elsewhere. For the purposes of self-employment tax, however, single member LLCs (a/k/a disregards) are afflicted by the same malady as member managed LLCs and Manager Managed LLCs--self-employment tax!
Self-employment tax has an effective rate of roughly 17% (check these numbers). This tax is ADDED to the LLC member's pass-through tax liability on their tax returns.
This means that if a LLC co-venturer is in the highest tax bracket, they will be paying 37% in individual income tax on all earned income (whether or not distributed to members) PLUS 17% self-employment tax for an EFFECTIVE TAX RATE OF 54%!!!!!!!
Even if a shareholder is only in the 25% individual income-tax rate, they will still have an effective tax rate of 42%, way too high to justify!
Note that, at time of writing (and since 2015), the self-employment tax (when required to be paid) must be paid on the first $118,500 of "combined wages, tips, and net earnings;" note that the business will still be responsible for 2.9% Medicare tax on all self employment income (including all income about $118,500). [cites directly below].
See Self-Employment Tax (Social Security and Medicare Taxes), IRS, https://www.irs.gov/businesses/small-businesses-self-employed/self-employment-tax-social-security-and-medicare-taxes (last accessed Jan. 21, 2018); see also Tony Nitti, S Corporation Shareholder Compensation: How Much Is Enough?, THE TAX ADVISOR (Aug. 1, 2011), https://www.thetaxadviser.com/issues/2011/aug/nitti-aug2011.html#fnref_6.
Self-Employment Tax Implications of Operating a S-Corporation
Forming an S-Corporation instead of an LLC offers many tax benefits for potential mining businesses. For example, S-Corporations offer the same beneficial tax pass-through treatment as LLCs. S-Corporations also offer the ability to AVOID ANY SELF-EMPLOYMENT TAX WHATSOEVER (in theory)!!!!!!!
S-Corporations have three main ways of distributing income: (1) employee salaries and payments to other creditors; (2) expansion / improvement expenses; and (3) making distributions to shareholders.
It is generally disadvantageous to pay yourself a salary when running an S-Corp. because salaries come with concomitant payroll tax requirements (the payroll tax is in place of a self-employment tax). Generally, shareholders prefer receiving distributions because no payroll tax is imposed on such distributions. Furthermore, these distributions are often tax free events if the shareholder has a positive basis in the corporation in excess of the amount of money being distributed to the shareholder.
Rev. Rul. 59-221, 1959-1 C.B. 225 holds that a shareholder’s undistributed share of S corporation income is not treated as self-employment income.
As a shareholder receives tax free distributions, their basis decreases dollar-for-dollar measured against tax-free received. Once a shareholders basis is zero, they will owe taxes on any additional income earned that year. Shareholders will pay long-term capital gain rates (in most instances) on distributions in excess of the shareholder's basis in the S-Corporation.
SHAREHOLDERS PERFORMING SERVICES FOR THE CORPORATION
S-Corporation employee shareholders (i.e., a shareholder who also performs employee-like functions for the S-Corp) MUST be paid a "REASONABLE SALARY" for the performance of "SUBSTANTIAL SERVICES."
For years, there was very little guidance on the meaning of "reasonable salary" or "substantial services." Luckily, we now have a much better idea of what these terms mean. For a great overview of case law and administrative rulings governing these issues, check out this article (also cited above) entitled S Corporation Shareholder Compensation: How Much Is Enough? (written by a CPA, MST).
Essentially, within the context of a cryptocurrency mining business, your clients can avoid employment taxes (in most cases) because there is very little your clients will be doing that would qualify as substantial services. The term "substantial services" has been interpreted to require a fair amount of work (case law examples often talk about someone working for 35 hours a week, 52 weeks a year as constituting "substantial services"). Running a small to medium scale mining business is a fairly barebones operation.
Fundamentals of Running a Mining Business
Most mining operations require only the following startup materials: (1) mining hardware; (2) internet connection; and (3) adequate power source. These are the minimum components required for a mining business. Medium to large scale mining operations will likely also require some sort of separate area (i.e., signing a commercial lease) to put the mining hardware as it can get quite loud with $50,000 or more of equipment running on a non-stop basis.
The mining business operator need only set up his mining hardware once and maybe troubleshoot occasionally or add/upgrade a machine. While setting up a miner can sometimes be a pain in the rear, it seldom takes more than a couple hours (keep in mind, this estimate is for businesses using commercial ASIC miners; people building their own miners warrant special considerations due to extreme time commitments required for such build-outs).
As the principal function of the business is to solve transactions with complex hashing functions only solvable with specific computerized technology, the other duties associated with running a mining business are largely administrative, can be easily automated, and require only minimal supervision and monitoring. These other duties include: (1) sending mined coins from the mining pool to their wallet; (2) recording the value of a mined coin at the time it is mined (or transferred from the mining pool to the miner's business wallet if done on a consistent incremental basis); (3) keeping accurate financial records; (4) paying overhead costs; (5) occasionally logging into mining pool or miner IP address to ensure miner is running properly; (6) occasionally research new equipment for future purchases; and (7) make occasional but simple business decisions regarding whether to reinvest profits or distribute them to shareholders.
TOTAL HOURS WORKED (WEEKLY BASIS)
In the author's experience (running a very small three miner mining business), the average amount of time it takes to get a commercial ASIC miner running and to join a mining pool is about one hour of research and three hours of tinkering (and this was for someone with little previous experience in such matters) for a total of four hours per miner, plus or minus two hours depending on the type of miner and person. In terms of the other tasks associated with running a mining business, the author estimates that a total of roughly 20 hours per year is the maximum amount of work required to operate a small mining business. A medium-sized mining business in a commercial building should expect to spend between 10 and 50 hours per year performing employee-like tasks. A large-scale mining operation's employee-like annual hour requirements will vary substantially depending on the business owners' automation and efficiency skills but may reasonably range anywhere between 10-200 hours.
Looking at the above numbers, regarding hours spent performing employee-like tasks, it is relatively simple to figure out if the shareholders of a mining business may end up performing substantial services (see S-Corp info in section above) for the corporation. For small businesses, such as mine, the mining operator may only spend a maximum of 0.3846 hours per week (20 hours per year divided by 52 weeks) working on employee-like tasks. It is safe to assume 0.3846 hours per week does not constitute "substantial services." As such, no reasonable salary need be paid to the shareholder performing this amount of work.
For medium-sized mining businesses, the average amount of hours worked per week may range (based on 10-50 hour annual estimate provided above) between 0.1923 hours per week and and 0.9615 hours per week (# of hours per year divided by 52 weeks). Once again, it is safe to assume that 0.9615 hours per week (the highest end of the average) does not constitute "substantial services." As such, no reasonable salary need be paid to the shareholder performing this amount of work (especially if this amount of work is spread out over multiple shareholders).
For large-scale mining businesses, a special evaluation will be necessary as setup may require a substantial amount of upfront effort and may skew the number of hours being worked. Additionally, it is possible for the amount of employee-like annual hours to vary substantially year-to-year which would cause the corporation's employment tax liabilities to vary accordingly. If we assume that the 10-200 hour estimate provided above is reasonable, we can calculate an average weekly hourly output of between 0.1923 hours per week and 3.84 hours per week (# of hours per year divided by 52 weeks). If a single employee is performing 3.84 hours of work per week, it is possible this constitutes "substantial services" when performed on a consistent basis over a continuous 52-week period. Contra Davis v. United States, No. 93-C-1173 (D. Colo. 1994) (holding that an average work week of 12 hours per week does not constitute substantial services). That said, it is entirely possible that 3.84 hours per week may fall well below the standard established by Radtke v. United States, 712 F. Supp. 143 (E.D. Wis. 1989) (distinguished on other grounds) (holding "where the corporation’s only director had the corporation pay himself, the only significant employee, no salary for substantial services . . . [h]is ‘dividends’ functioned as remuneration for employment."). As always, do your own research and advise your clients accordingly. The sources identified in this article should steer you in the right direction.
Keep in mind that hiccups happen in business, and sometimes, a mining business may require long and consistent employee-like working hours by the shareholder-operator (i.e., in the event of unexpected problems). In these cases, the general principles elucidated above become muddled. As hours increase in an upward fashion, the more likely it becomes that a shareholder may need to be paid a "reasonable salary." Make sure your client is aware of this and have them call you if they anticipate working substantially more hours than expected in any given year.
Should your client encounter an unexpected and substantial increase in weekly hourly requirements, one possible option to avoid incurring employment tax liabilities is to break up the total amount of work among as many shareholders as possible to keep individual hours low. Please note that the IRS may take umbrage at this sort of gamesmanship and audit your client (please note that I have not researched this tax position; it is possible existing case law or Treasury Regulations already explicitly allow or disallow this; as always, do your own research).
Davis v. United States, No. 93-C 1173 (D. Colo. 1994) (pertains to hours worked and duties performed)
One case, Davis v. United States, No. 93-C-1173 (D. Colo. 1994), provides strong support for the position that S-Corporation shareholder mining operators, in most instances, are unlikely to be considered to have provided substantial services requiring reasonable compensation.
In Davis, the taxpayer is a S-Corporation shareholder who performed "part-time clerical duties for the company, including paying bills, submitting invoices, making bank deposits, and communicating with independent contractor truck drivers." Ms. Davis also made business decisions for Mile High and took a few business trips.
Ms. Davis was not paid a salary for her performance of these duties. Rather, Ms. Davis was paid in shareholder distributions. The IRS argued that such shareholder distributions were improper as the income received should have been classified as salary income as it was actually compensation for performance of substantial services.
Davis held for the taxpayer voiding the IRS's imposition of employment taxes by holding that such taxes were assessed in a manner that was arbitrary and capricious.
If Davis can be reasonably relied on, most S-Corporation mining business shareholders will not be required to pay themselves a salary. Figure out your client's facts and apply the information above accordingly!
Curious how the Tax Cuts and Jobs Act (2017) may impact choice of entity decisions? If so, click HERE.