By: Jay Mittelman
Despite a relatively quiet hurricane season, 2014 had its fair share of other natural as well as manmade disasters, including blizzards in upstate New York, wildfires and winter storms in California, mudslides in Washington and riots in Ferguson, Mo., and Berkeley, Calif. As we get ready to ring in the New Year, these tragedies serve as sobering reminders to always expect the unexpected.
Your business could become a victim of Mother Nature or other external forces without warning. After a disaster, an estimated 25 percent of businesses are unable to reopen. Depending on the type of business and its financial stability, a few weeks of lost income can be enough to close your doors indefinitely.
Are Business Interruption Proceeds Taxable?
Insurance proceeds received for the loss of property generally aren’t taxable if you use the money to purchase replacement property. But business interruption proceeds are fully taxable to the extent that they’re used to replace lost income.
When are they taxable? Cash basis entities that file an undisputed claim with the insurance carrier must pay tax when they receive payment. For accrual basis taxpayers, the general rule of thumb is: Where liability is undisputed by the insurer and the amount of the recovery can be reasonably approximated, income accrues in the year of the loss, despite the fact that the amount of the recovery may not be known at the time of accrual.
For accrual basis entities, the timing of the tax liability is less straightforward when a business interruption claim is in dispute. To determine whether the proceeds should be recognized in the year that the claim is filed, the IRS considers two main issues:
The timing of tax liability hinges on the facts and circumstances . Sometimes, claims aren’t includible in taxable income until the litigation between the parties is settled and the amount is set. Consult with your tax adviser when you file a business interruption claim to make sure the timing is right.
Proactive Disaster Planning
Commercial property insurance doesn’t typically pay the costs of this type of disruption. What can help you survive is business interruption coverage that allows you to relocate or temporarily close so you can make the necessary repairs — and still be provided with cash flow to cover revenues lost and expenses incurred while your normal operations are suspended.
Before the next disaster strikes, consult with your insurance agent about business interruption coverage. To determine the proper amount of coverage, your financial adviser can help forecast a worst-case scenario and ask “what-if” questions to cover all the possibilities. Of course, you don’t want to over insure, but you also don’t want to overlook critical risks, such as prolonged or multiple power outages.
Business interruption insurance isn’t sold as a separate policy. Instead, it’s added to your existing property insurance policy. There are two basic types of business interruption coverage:
Named perils policies. These cover only specific occurrences that are listed in the policy, such as fire, water damage and vandalism.
All-risk policies. These cover all disasters unless they are specifically excluded. Most all-risk policies specifically exclude damage from earthquakes and floods, but such coverage can generally be added for an additional fee.
Business interruption insurance usually pays for income that’s lost while operations are suspended. It also covers continuing expenses, including salaries, related payroll costs and other costs required to restart a business. Depending on the policy, additional expenses might include:
Business interruption coverage that insures you against 100 percent of losses can be costly. More often, policies cover 80 percent of losses while you shoulder the remaining 20 percent.
Once you’ve selected business interruption coverage to suit your company’s needs, secure business documents offsite so you can access them quickly if a disaster occurs.
The key to business continuity after a disaster is to file the proper claims against your business interruption insurance as soon as possible. But be warned: This type of insurance is arguably one of the most complicated on the market today; submitting a claim can be time-consuming and requires careful consideration.
Follow these steps as soon as it is feasible:
Be as precise as possible — or your claim may be delayed or denied. Your accountant can review the records you plan to submit and organize them in anticipation of litigation if the insurer is reluctant to pay your claim. Taking the time to prepare for that possibility — even if it is remote — can save a great deal of effort later.
The calculation of losses is one of the most important, complex and potentially contentious issues involved in making business interruption insurance claims. Depending on the scope of your loss, the insurance company may enlist its own specialists to audit your claim. So you also may want to consult an accountant who is experienced in business valuation and litigation support to help prepare your claim, quantify business interruption losses and anticipate questions from your insurer.
Here are the major roles your accountant can play in managing the claims process:
Point-person. The accountant can be the primary contact with the insurer, dealing with the typical onslaught of document requests. That leaves you free to run the business and bring it back up to speed. He or she can also keep the claims process on track by informing the insurer about your actions and dealing with requests to inspect the damaged property. It’s possible that your accountant may already have an established relationship with your insurer and knows how its claims department works.
Damage estimator. Most policies define losses based on the earnings a company would have made if the interruption hadn’t occurred. To project lost profits, the accountant will analyze, identify and segregate revenues and expenses. The insurer will cover only losses that are directly attributable to the damage, as opposed to macroeconomic or other external causes, such as an economic downturn.
Your company also will be required to detail the steps it took to mitigate losses during the business interruption period, which is the time it took your business to resume normal operations. The steps may involve having to move to a temporary location. The interruption period is critical and one of the determining factors the insurer will use when examining the total amount of your company’s claim.
Be a Survivor
No one knows what natural and manmade disasters will strike in 2015. Business interruption insurance obviously won’t solve all your problems when the next disaster strikes, but it can improve your odds of survival. Working with an attorney who can aid in the legal interpretation of the policy, your accountant can quickly and efficiently assemble the information and calculations needed for a viable business interruption claim. Filing a well-crafted business interruption claim can result in a quick and easy resolution with the insurance company — and provide much-needed cash flow to get your business back up and running again.