Tax and financial advice from the Silicon Valley expert.

How to get your rebate when you didn’t file an income tax return or you receive Social Security and have a dependent

The IRS has set up a web page for non-filers to request advance rebate payments.  (IR-2020-69)

Individuals who receive social security payments or Railroad Retirement benefits should receive their payments without having to apply for them, but the payments will be limited to the $1,200 for the recipient.  Individuals who didn’t file income tax returns for 2018 or 2019 can apply for payments for spouses who aren’t receiving the benefits and for dependent children under age 17 who would qualify for the child credit using the IRS web page.

These individuals should apply for the advance rebate at the IRS web page:

  • Individuals who didn’t file a 2018 or 2019 income tax return because their income was below the filing threshold;
  • Veterans beneficiaries and SSI recipients; and
  • Social security, social security disability income, and Railroad Retirement beneficiaries with qualifying dependents.

Here is the URL for the web page.  https://www.irs.gov/coronavirus/non-filers-enter-payment-info-here

Which employees qualify for employer leave payments under the Families First Coronavirus Response Act?

Congress enacted and President Trump signed legislation requiring employers to make employee leave payments as a coronavirus relief measure on March 18, 2020.  The title of the legislation is the Families First Coronavirus Reponse Act (P.L. 116-127)  (the Family First Act, FFA or the Act.)  Employers are reimbursed for these payments through tax credits that they can apply against their payroll tax liabilities.

Here is a URL to the text of the Act. https://www.congress.gov/116/plaws/publ127/PLAW-116publ127.pdf

The Department of Labor recently published questions and answers that provide important information about which employees are covered and the amounts that employers are required to pay those employees.  Here is a URL to the questions and answers.  https://www.dol.gov/agencies/whd/pandemic/ffcra-questions

The Department of Labor has also issued a poster that employers are required to use to notify employees of their rights.  Here is a URL to the poster.  https://www.dol.gov/sites/dolgov/files/WHD/posters/FFCRA_Poster_WH1422_Federal.pdf

According to the Department of Labor Questions and Answers, the FFA’s paid leave provisions are effective on April 1, 2020 and apply to leave taken between April 1, 2020 and December 31, 2020.

The IRS has published FAQs about the payroll tax credits for required employee leave under the FFA.  Here is a URL to the FAQs. https://www.irs.gov/newsroom/covid-19-related-tax-credits-for-required-paid-leave-provided-by-small-and-midsize-businesses-faqs

The employee leave requirements of the FFA do not apply to private sector employers that have 500 or more employees.

Employers with fewer than 50 employees and compliance with the requirements would threaten the viability of the business as a going concern may qualify for a small business exemption.  These businesses should document the reason the business viability is threatened.  There currently isn’t a form or application procedure for the exemption.

According to guidance issued by the Department of Labor, employees who take paid leave under the Act are required to provide the employer with documentation supporting the reason for leave.  The employer should keep copies of federal and local quarantine orders.  The employee should give a statement with the employee’s name, qualifying reason for requesting leave, a statement that the employee is unable to work, including telework, for that reason, and the date(s) for which leave is requested.  If leave is requested under a doctor’s orders, a letter from the doctor should be kept by the employer.

If expanded family leave is requested because a child’s school is closed, documentation should be kept for that event.

According to guidance issued by the Department of Labor, you are unable to work if your employer has work for you and one of the reasons listed below for the Emergency Paid Sick Leave Act prevents you from being able to perform that work, either under normal circumstances at your normal worksite or by teleworking.

According the Department of Labor guidance, if an employer closed its worksite before April 1, 2020, the employee isn’t entitled to paid sick leave because there isn’t any work for the employee to do.  This is true whether the employer closes the worksite for lack of business or because it’s required to close because of a Federal, state or local directive.  In this case, the employee should apply for state unemployment insurance benefits.

If an employer closes its worksite after April 1, 2020 but before the employee goes on leave, the employee isn’t entitled to paid leave under the Act and should apply for unemployment insurance benefits.

If an employer closes its worksite after April 1, 2020 when an employee is on paid sick leave under the Act, the employee is no longer eligible for paid leave under the Act and should apply for unemployment insurance benefits.

If an employer remains open and furloughs an employee after April 1, 2020 because there isn’t work for the employee, the employee isn’t eligible for paid leave under the Act and should apply for unemployment insurance benefits.

If an employer remains open and reduces an employee’s scheduled work hours because of a reduced workload, the employee isn’t entitled to paid leave under the Act, even if the reduced hours are a result of the coronavirus shutdown.  The reason is the employee isn’t prevented from working those hours because of a coronavirus-related reason.

An employee may take paid sick leave or expanded family and medical leave intermittently while teleworking.

Unless you are teleworking, paid sick leave for qualifying reasons related to coronavirus must be taken in full-day increments.

Unless you are teleworking, once you begin taking paid sick leave for one or more of the qualifying reasons, you must continue to take paid sick leave each day until you either (1) use the full amount of paid sick leave or (2) no longer have a qualifying reason for taking paid sick leave.  This requirement is imposed to avoid having other employees be exposed to the coronavirus.

The rules are different when a parent is taking sick leave to care for a child whose school or place of care is closed.  In that case, the employer and employee can agree for the employee to take paid sick leave intermittently, such as taking leave on Mondays, Wednesdays and Fridays and working on Tuesdays and Thursdays.

Employees may not receive unemployment benefits when they are receiving paid sick leave.

According to Department of Labor guidance, employers aren’t allowed to require employees to supplement or adjust the pay mandated under the Act with paid leave under the employer’s paid leave policy.  The employee must choose one or the other.

Wages paid for employee leave under the FFA are taxable wages for employees, but aren’t subject to the employer shares of Social Security tax (6.2%).

There are two sections of the FFA relating to employee leave:  The Emergency Family And Medical Leave Act and The Emergency Paid Sick Leave Act.

The Emergency Family And Medical Leave Expansion Act

The Emergency Family And Medical Leave Act relates to employees who are unable to work or telework due to a need to take leave to care for a son or daughter under 18 years of age of such employee if the school or place of care has been closed, or the child care provider of the son or daughter is unavailable due to a public health emergency (the coronavirus shutdown declared by a Federal, state or local authority.)

In order to be eligible, the employee must have been employed for at least 30 calendar days by the employer from whom leave is being requested.

The first 10 days for which an employee takes leave may be unpaid leave.  An employee may elect to substitute accrued vacation leave, personal leave, or medical or sick leave for unpaid leave.  According to guidance issued by the Department of Labor, the employee may be entitled to paid leave under the Emergency Paid Sick Leave Act for the initial 10 days, which is a higher rate of pay.  (See below.)

After the first 10 days, the employer is required to pay the employee not less than two-thirds of the employee’s regular rate of pay, based on the number of hours the employee would normally be scheduled to work.  The maximum required paid leave is $200 per day, or $10,000 total for the ten-week period.

According to guidance issued by the Department of Labor, the employee initially uses up to 10 days under the Emergency Medical Leave Act, and then may use up to ten weeks expanded leave after that under the Emergency Family And Medical Leave Expansion Act.

If the employee has an irregular schedule, the employer should determine an average of hours worked per week and average rate of pay per hour over a six-month period ending on the date the employee starts taking leave.  If the employee worked less the six months, the employer may estimate the hours expected the employee to be scheduled to work.  According to guidance issued by the Department of Labor, if the employee hasn’t been employed for at least six months, use the number of hours that the employer and the employee agreed the employee would work when the employee was hired.  If there wasn’t such an agreement, calculate the appropriate number of hours of leave based on the average hours per day the employee was scheduled to work over the entire term of his or her employment.

According to Department of Labor guidance, overtime hours are included when computing the hours the employee would normally work in a week when computing expanded leave.  Pay does not include a premium for overtime hours.

Employers with less than 25 employees are not required to pay leave provided:

  1. The employee takes leave to care for the employee’s child.
  2. The position held by the employee does not exist due to economic conditions or other operating conditions of the employer (a) that affect employment; and (b) are caused by a public health emergency during the period of leave.
  3. The employer makes reasonable efforts to restore the employee to a similar position, with equivalent pay and benefits.
  4. If the employer is unable to restore the employee to a similar position, the employer makes a reasonable effort to contact the employee during the 1-year period beginning on the earlier of (a) the date on which the qualifying need from a public health emergency concludes, or (b) the date 12 weeks after the date on which the employee’s leave commences.

The Emergency Paid Sick Leave Act

An employer is required to provide to each employee employed by the employer paid sick time to the extent that the employee is unable to work (or telework) and takes leave because:

  1. The employee is subject to a Federal, State or local quarantine order relating to the coronavirus.
  2. The employee has been advised by a health care provider to self-quarantine due to concerns relating to the coronavirus.
  3. The employee is experiencing symptoms of the coronavirus and seeking a medical diagnosis.
  4. The employee is caring for an individual who is subject to an order described at item 1 or has been advised as described at item 2.
  5. The employee is caring for a son or daughter of the employee if the school or place of care of the son or daughter has been closed, or the child care provider of the son or daughter is unavailable due to coronavirus precautions.
  6. The employee is experiencing any other substantially similar condition specified by the Secretary of Health and Human Services in consultation with the Secretary of the Treasury and the Secretary of Labor.

An employer of an employee who is a health care provider or an emergency responder may elect to exclude the employee from eligibility from paid sick leave under this Act.

An employee that meets requirements 1, 2, or 3 above is entitled to paid sick time at the employee’s regular rate of pay for up to 80 hours for a full time employee or, for a part-time employee, the average number of hours the employee works during a two-week period.  According to guidance issued by the Department of Labor, the amount received will be based on the greater of (a) the employee’s regular rate of pay, (2) the federal minimum wage, or (3) the applicable state or local minimum wage, up to a maximum of $511 per day, or $5,110 for the entire sick leave period.

(According to guidance issued by the Department of Labor, once the employee takes 80 hours, the employee won’t qualify for additional sick leave under the Act for 2020.  Only sick leave received for the period on or after April 1, 2020 counts.)

According to guidance issued by the Department of Labor, commissions, tips, and piece rates must be included in the employee’s regular rate of pay.

An employee that meets requirements 4, 5, or 6 above is entitled to compensation based on 2/3 of the amounts for requirements 1, 2, or 3 to a maximum of $200 per day, or $2,000 for the two-week period.

The sick time under the Act isn’t eligible for carryover to a subsequent year.

Paid sick time under the Act ceases beginning with employee’s next workshift following the termination of the need described at items 1 – 6 above.

An employer may not require that an employee search for or find a replacement employee as a condition to receive sick pay under the Act.

If the employee is eligible for accrued sick pay from the employer, the employee uses sick pay under the Act first.

Employers are prohibited from discharging, disciplining, or in any other way discriminating against an employee who takes leave in accordance with the Act and files a complaint relating to the Act.

Tax Credits For Paid Sick and Paid Family and Medical Leave

Certain employers are eligible for a tax credit against the employer share of social security tax (6.2%.)  The credit is 100% of qualified sick leave wages paid by the employer for the calendar quarter.

The maximum sick leave wages for an individual is $200 per day, or $511 per day in the case of sick leave wages paid under the Emergency Paid Sick Leave Act.

In addition to the sick leave wages, the credit is increased for the employer’s qualified health plan expenses that are properly allocable to the qualified sick leave wages for which the credit is allowed.  The IRS is to define a procedure to prorate the qualified health plan expenses on the basis of period of coverage to to time periods of leave that the wages relate to.

The maximum days for an individual for a calendar quarter is 10 minus the total days taken in preceding calendar quarters during 2020.

The credit is limited to the total employer portion of social security taxes and medicare taxes for the quarter, but any excess credit over that limit is treated as a refundable overpayment.

Qualified sick leave wages for the credit means compensation required to be paid under the Emergency Paid Sick Leave Act.

Any credit allowed increases taxable income and no credit is allowed for wages when another tax credit is based on them.

An employer may elect out of claiming the credit.

The credit is not available for employees of Federal, state, or local governments.

Tax credit for sick leave of self-employed individuals

Self-employed individuals may claim a credit for the qualified sick leave equivalent amount for the individual against the individual’s self-employment tax.

An eligible self-employed individual is covered if he or she would be entitled to receive benefits under the Emergency Paid Sick Leave Act if the individual was an employee of an employer (other than himself or herself.)

The “qualified sick leave equivalent amount” is an amount equal to the number of days during the taxable year (up to the applicable number of days) that the individual is unable to perform services in any trade or business referred to in IRC Section 1402 for a reason that individual would be entitled to receive sick leave under the Emergency Paid Sick Leave Act multiplied by the lesser of (a) $200 ($511 for any day of sick time for reasons 1, 2, or 3 above) or (b) 67% (100% for any day of paid sick time for reasons 1, 2, or 3 above) of the average daily self-employment income of the individual for the taxable year.

The average daily self-employment income is the net earnings from self-employment of the individual for the taxable year divided by 260.

The applicable number of days is the excess of 10 days over the number of days taken into account in all preceding taxable years.

Any credit in excess of the self-employment tax is treated as a refundable payment.

The taxpayer is required to document the reason why he or she is entitled to the credit.

If the individual also receives wages from an employer that are required to be paid under the Emergency Paid Sick Leave Act, the qualified sick leave equivalent amount is reduced by any paid leave amount received.

Payroll credit for Required Paid Family Leave

An employer may claim a tax credit to apply against the employer portion of social security taxes (6.2%) for each calendar quarter an amount equal to 100% of the qualified family leave wages paid by the employer with respect to the calendar quarter.

The qualified family leave wages for an individual are up to $200 per day, to a maximum of $10,000 for a calendar year.

Any credit in excess of the employment taxes is treated as a refundable overpayment.

In addition, qualified health plan expenses attributable to the wages are added to the credit, under rules similar to those described for Paid Sick and Paid Family Leave, above.

This credit also increases taxable income and any expenses for which another tax credit is allowed are disallowed for computing this credit.

Credit for Family Leave for Self-Employed Individuals

Self-employed individuals who would have been eligible for leave under the Emergency Family and Medical Leave Expansion Act if they were employees may claim a tax credit against their self-employment tax for amounts equivalent to Family Leave.

The individual may claim up to 50 days times the lesser of (a) 67% of the average daily self-employment income, or (2) $200.

The self-employed person is required to be able to document being entitled to the credit.

If the self-employed person receives leave compensation as an employee for another employer, the eligible self-employment income is reduced for any leave payments received.

The credit is refundable.

If any benefit is allowed for the income under another Code section, the credit is disallowed for that amount.

Expediting getting payroll tax credits

The employer can expedite getting the cash benefit of payroll tax credits under the FFA or the CARES Act by either

  1. Retaining these employment taxes instead of depositing them: (a) Federal income tax withheld for all employees; (b) The employee’s share of social security and medicare taxes (for employees who received paid leave benefits); and (c) the employer’s share of social security and medicare taxes for all employees or
  2. Employers may file Form 7200, Advance Payment of Employer Credits Due To COVID-19.  The IRS says it will try to issue refunds within two weeks for this form.  It can be filed several times during a quarter.

Here is a URL for Form 7200 with instructions.  https://www.irs.gov/forms-pubs/about-form-7200

Congress enacts advance tax rebates and other tax breaks in the CARES Act

Congress passed and President Trump signed the Coronavirus Aid, Relief and Economic Security (CARES) Act (P.L. 116-136)  on March 27, 2020.

Here is a URL to see the text of the Act. https://www.congress.gov/116/bills/hr748/BILLS-116hr748enr.pdf

Here is a URL to the Franchise Tax Board’s FAQs relating to COVID-19 issues. https://www.ftb.ca.gov/about-ftb/newsroom/covid-19/help-with-covid-19.html

Here are some highlights of tax provisions of the Act.

Advance tax rebates

The provision that has received the most publicity is advance tax rebates of $1,200 for single persons and $2,400 for married couples who file joint income tax returns.  In addition to these amounts, $500 will be included in the advance tax rebate for each dependent child claimed by the taxpayer(s) who qualifies for the child tax credit under Internal Revenue Code Section 24.

The rebates will be mailed or electronically deposited as soon as possible by the IRS to provide relief to Americans who are suffering from the shutdown of our society to fight the coronavirus pandemic.

Not everyone will qualify.  The rebates are reduced to not below zero by 5% of the taxpayer’s adjusted gross income above $150,000 for married couples filing joint returns, $112,500 for heads of households, and $75,000 for other taxpayers.

Nonresident aliens, anyone who is claimed as a dependent, estates and trusts don’t qualify for the rebate.

The IRS will make a preliminary determination based on the last income tax return filed for 2018 or 2019, or for seniors who do not file an income tax return, their social security record.

Since the IRS doesn’t have spouse and dependent information for social security recipients who don’t file a tax return, they might want to file income tax returns for 2018 or 2019 if it increase their rebate.

When the taxpayer prepares his or her 2020 federal individual income tax return, the rebate will be recomputed based on the current year facts.  Any additional rebate will be allowed as a credit on the income tax return.  The taxpayer gets to keep any excess of the amount received over the computed amount.

The rebate reduces the federal income tax and any amount already received by the taxpayer and is treated as an refund received in amount.  The rebate isn’t taxable income.  The rebate can be more than the tax before the rebate and is refundable.

Waived early withdrawal penalty for certain retirement plan distributions

Taxpayers who receive a distribution from a qualified retirement plan or an IRA before they reach age 59 1/2 are normally subject to a 10% federal early distribution penalty.

The penalty will be waived for up to $100,000 of distributions during 2020 to an individual (1) who is diagnosed with coronavirus, (2) whose spouse or dependent is diagnosed with coronavirus, or (3) who experiences financial consequences as a result of being quarantined, being furloughed or laid off or having work hours reduced due to the coronavirus crisis, being unable to work due to lack of child care due to the virus, closing or reducing hours of a business owned or operated by the individual due to the virus, or other factors as determined by the IRS.

Unless the taxpayer elects out, the income from a coronavirus-related distribution will be spread ratably over a 3-taxable year period, beginning with with the distribution year (2020.)

Although these distributions won’t be eligible under the usual rules for rollovers or trustee-to-trustee transfers, corona virus-related distributions from a qualified plan or an IRA may be repaid to the qualified plan or an IRA within 3 years beginning the day after the date the distribution was received.  The amount repaid will be treated as a direct trustee-to-trustee transfer within 60 days of the distribution.

Since these distributions aren’t considered to be rollovers, you can have as many distributions as you want during 2020 treated as trustee-to-trustee transfers or have them taxed over three years, provided they qualify as coronavirus-related.

Roth conversions can also be taxed over three years under the rule, provided the distribution was coronavirus related, such as if the account owner was diagnosed with a mild case of the virus.

It appears claiming the recharacterization of the distribution for any repayments will be reported on the 2020 income tax return, and the return will be amended if the distribution isn’t restored in time.

Distributions from inherited IRAs with a nonspouse beneficiary don’t qualify for rollover treatment.  (IRC § 402(c)(4), (9), § 408(d)(3)(C).)  (Once a distribution is received by a nonspouse beneficiary from an inherited IRA, it can’t be redeposited.)

The waiver of penalty and extended rollover provisions apply to distributions on or after January 1 and before December 31, 2020.  (Evidently, distributions ON December 31, 2020 won’t qualify.)

Required minimum distributions aren’t required for 2020

The required minimum distributions that apply to defined contribution qualified retirement plans (401(k)s and profit sharing plans) and IRAs after a participant reaches age 72 (age 70 1/2 before the SECURE Act was enacted) is waived for 2020.

If an employee reached age 70 1/2 during 2019, so the employee has a required beginning date on April 1, 2020, the penalty is also waived for that payment.

For years after 2020, the required minimum distributions will be computed by the regular procedure (beginning balance divided by life expectancy) without regard to the 2020 required minimum distribution and the required beginning date will be unchanged for other income tax determination purposes.

Charitable contributions limits for individuals increased

Individuals who don’t itemize deductions on their federal income tax returns will be able to deduct on their 2020 federal income tax returns up to $300 of charitable contributions that would otherwise qualify, except for donations to a donor advised fund or a private foundation.

The limitation for itemized deductions of cash charitable contributions to public charities by individuals, normally 60% of adjusted gross income, is eliminated for 2020.

Charitable contributions limit for corporations increased

The limit for charitable contributions for C corporations is increased for charitable contributions paid in cash during calendar year 2020 to public charities from 10% of modified taxable income to 25% of modified taxable income.

Charitable contributions limit for food inventory

For noncorporate taxpayers, the limit for charitable contributions of food inventory is increased from 15% to 25% of the taxpayer’s aggregate net income for 2020 from all trades or businesses from which such contributions were made.

For C corporations, the limit for charitable contributions of food inventory is increased from 15% to 25% of modified taxable income.

Exclusion for employer payments on student loans

Effective for payments made after March 28, 2020 and before January 1, 2021, payments by an employer, whether paid to the employee or to a lender, of principal or interest on any qualified education loan incurred by the employee for education of the employee are excluded from the employee’s taxable income.  The employee won’t be eligible to claim an interest deduction for the excluded amount.

Payroll tax credit for certain employers

Employers who have their business operations fully or partially suspended during a calendar quarter due to orders from a government authority due to the coronavirus during the period beginning with the first calendar quarter beginning after December 31, 2019 for which gross receipts are less than 50% of gross receipts for the same calendar quarter in the prior year and ending with the calendar quarter for which gross receipts are greater than 80% of the gross receipts for the prior year and all tax-exempt organization during 2020 are eligible for an employee retention tax credit of 50% of qualified wages of up to $10,000 for each employee for all calendar quarters.

Note that employers who receive a small business interruption loan aren’t eligible for this credit.  (The loan may be eligible for forgiveness, and that would be double-dipping.)  If the employer claims the credit and receives a loan in a subsequent quarter, the credit will be recaptured.

The credit is effective for wages paid after March 12, 2020 and before January 1, 2021.

The credit is limited to the 6.2% employer share of social security taxes for all employees during the calendar quarter, but any credit in excess of that amount is treated as an overpayment and is refundable to the employer.  (Note that medicare taxes and federal unemployment taxes aren’t eligible to be offset by the credit.)

The credit is reduced for credits allowed for employment of qualified veterans, research expenditures of qualified small businesses, and payroll tax credits for paid sick and paid family and medical leave provided in the Families First Coronavirus Response Act.

For employers having an average of more than 100 full-time employees during 2019, qualified wages means wages paid with respect to which an employee is not providing services due to a government-ordered suspension or a period of significant decline in gross receipts, but not in excess of the amount the employee would have been paid for working an equivalent duration during the 30 days immediately preceding the period.

For employers with an average of 100 or fewer full-time employees in 2019, qualified wages means wages paid with respect to an employee during any period of a government-ordered suspension or during a quarter that is within a period of significant decline in gross receipts.

Qualified wages don’t include any amounts taken in account for payroll tax credits provided in the Families First Coronavirus Response Act.

Qualified wages includes the employer’s qualified health plan expenses properly allocable to the wages that are excluded from the gross income of employees.

Wages of employees for which a work opportunity credit is claimed aren’t eligible for the credit.

Governmental employers aren’t eligible for the credit.

Here is a URL for IRS FAQs on the Employee Retention Credit.  https://www.irs.gov/newsroom/faqs-employee-retention-credit-under-the-cares-act

Deferred payment of employer payroll taxes

Deposits of the employer portion of payroll taxes due from March 28, 2020 through December 31, 2020 are deferred and payable 50% on December 31, 2021 and the balance on December 31, 2022.

Payments for one half of self-employment tax (the “employer” portion) for 2020 are also deferred and payable 50% on December 31, 2021 and the balance on December 31, 2022.

Employers that have a loan forgiven under Section 1106 of the CARES Act for a loan under Section 7(a)(36) of the Small Business Act aren’t eligible for deferring payment of employer payroll taxes.

Net operating loss deduction and carrybacks

The 80% of taxable income limitation for deducting net operating losses has retroactively been suspended for taxable years beginning after December 31, 2017 and before January 1, 2021.  For taxable years beginning after December 31, 2020, the 80% of taxable income limitation for deducting net operating losses will be restored.

For losses arising in a taxable year beginning after December 31, 2017 and before January 1, 2021, net operating losses may be carried back 5 taxable years. Previously, net operating loss carrybacks weren’t allowed for these years.

Taxpayers may elect to waive the carryback.  There is also a special election available to exclude carrybacks to one or more years that have income exclusion of offshore income under Internal Revenue Code Section 965.

Taxpayers may revoke a previous election to waive a net operating loss carryback by July 25, 2020.

Note many taxpayers should consider filing amended returns to claim net operating loss carrybacks from 2017, 2018. and 2019.

Excess business loss limitations suspended

The limitations on deductions for business losses in excess of business income have been suspended for taxable years beginning after December 31, 2017 and before January 1, 2021.

Since these losses will now be allowed, taxpayers who are entitled to them should file amended income tax returns to claim them.

Tax credit for prior year minimum tax liability of C corporations

The alternative minimum tax was repealed for C corporations by the Tax Cuts and Jobs Act of 2017.  Unused minimum tax credits were scheduled to be refundable with an annual 50% limitation for taxable years beginning in 2018, 2019, and 2020 until a 100% limitation would be applied for taxable years beginning in 2021.

Under the CARES Act, taxpayers may elect to claim a refundable credit for 100% of the balance for taxable years beginning in 2018 or 2019.

The election to claim the 100% limit for 2018 can be made using an application of tentative refund form (Form 1139.)  The form should be filed by December 31, 2020.  The IRS should issue the refund within 90 days after receiving the form.

Increased limit on deduction for business interest

Certain taxpayers that have more than $25 million of business income or are “tax shelters” are subject to a limitation for deducting business interest expenses.

Under the Tax Cuts and Jobs Act of 2017, the limit is the sum of (1) business interest income of the taxpayer for the tax year; (2) 30%  of the taxpayer’s adjusted taxable income for the year; and (3) floor plan financing interest of the taxpayer for tax year.

Under the CARES Act, the limitation of item (2) is increased to 50% for taxable years beginning in 2019 and 2020.

Technical correction for Qualified Improvement Property

Qualified improvement property is an improvement to an interior portion of a building that is nonresidential real property provided the improvement is placed in service after the date the building was first placed in service.  Improvements relating to the enlargement of a building, an elevator or escalator, or the internal structural framework of the building aren’t qualified improvement property.

This is the expanded definition of qualified improvement property adopted in the Tax Cuts and Jobs Act of 2017.

A drafting error in the Tax Cuts and Jobs Act of 2017 made the property subject to a 39 year depreciable life and not eligible for 100% bonus depreciation.

The CARES Act includes a technical correction defining qualified improvement property as 15 year property, qualifying for bonus depreciation.  This correction is retroactive to the date of enactment of the Tax Cuts and Jobs Act of 2017, which was December 20, 2017.

Even with this technical correction, some taxpayers won’t qualify for bonus depreciation for this property.  Taxpayers that are otherwise subject to the limitation for business interest deductions under Internal Revenue Code Section 163(j) (generally they have average annual gross receipts for the three prior years of $26 million for tax years beginning in 2020) and make elections to be excluded from the limitations, notably electing real property trade or businesses, electing farming businesses, and certain infrastructure trades or businesses, must used the alternative depreciation system instead of the modified accelerated depreciation system.  For these businesses, depreciable real estate has a useful life of 39 years, so they don’t qualify for bonus depreciation on qualified improvement property.

Taxpayers with commercial buildings that had qualified improvement property placed in service after 2017 should amend their 2017, 2018 and 2019 income tax returns to claim bonus depreciation for the year the property was placed in service.

Government loan guarantees for small businesses

In addition to the tax provisions discussed above and many other matters, the legislation includes a “Paycheck Protection Program.”  The Federal government will 100% guarantee SBA administered loans to businesses with not more than 500 employees.  Sole proprietors, independent contractors and other self-employed individuals are eligible for loans.  The covered loan period begins February 15, 2020 and ends on June 30, 2020.

There is an issue about whether self-employment compensation for partners in partnerships and members of LLC taxed as partnerships can be included in wages for Paycheck Protection Program loans.  They aren’t specifically listed.

Act Section 1102(a)(1)(viii)(I)(bb) includes income of a sole proprietor or independent contractor that is a wage, commission,income, net earnings from self-employment, or similar compensation and that is an amount that is not more than $100,000 in 1 year, as prorated for the covered person…”

The SBA “Interim Final Rules” II. 3. f. says payroll costs include “… for an independent contractor or sole proprietor, wage, commissions, income, or net earnings from self-employment or similar compensation.”

Based on these definitions, it seems that it was intended that compensation of self-employed persons, including LLC members, should be covered by the Paycheck Protection Program.  In a recent CalCPA webinar, CPAs from Armanino suggested that guaranteed payments in lieu of wages should be included in payroll for the loan application.  Since the definition in the Act is “self-employment income”, it seems to me that all self employment income should be included.  Guaranteed payments in lieu of wages should be increased or decreased for the partner’s or member’s share of self-employment income or losses from the partnership or LLC.

When you include this item in wages, you should probably explain what you are doing and why.

This legislation was drafted in a hurry, and whoever wrote it wasn’t thinking about partnerships and LLCs.

The maximum loan amount is $10 million through December 31, 2020.  The loan amount is based on payroll costs incurred by the business.

Uses of the loan include payroll support, such as employee salaries (subject to a $100,000 limitation for an employee’s wages), paid sick or medical leave, insurance premiums and mortgage interest, rent, and utility payments.

Only compensation of persons whose principal place of residence is in the United States are covered.

Federal employment taxes imposed or withheld between February 15, 2020 and June 30, 2020, including the employee’s and employer’s share of FICA and Railroad Retirement Act taxes and income taxes required to be withheld from employees, are excluded.

Qualified sick and family leave wages for which a credit allowed under the Families First Coronavirus Response Act (Public Law 116-126) are also excluded.  (No double dipping!)

Eligibility is based on whether a business was operational on February 15, 2020 and had employees for whom it paid salaries and payroll taxes, or a paid independent contractor.

The Act waives borrower and lender fees for particpating in the Paycheck Protection Program, and waives collateral and personal guarantee requirements under the program.

The maximum interest rate for these loans is four percent.

No loan payments will be required for at least six months and not more than a year, and requires the SBA to issue guidance about the deferment process by April 27, 2020.

Although the stated maturity of the loans is 10 years, the principal amount of the loan is forgiven up to the amount of (1) payroll costs; (2) payments of interest on a covered mortgage obligation; (3) payments on any covered rent obligation; and (4) covered utility payments. No more than 25% of the forgiven amount can be for non-payroll costs.

The debt cancellation is tax free.  (Act § 1106(i).)

Caution!  I have heard that some businesses, such as registered investment advisors, may be subject to restrictions on having debt.  Check with your compliance officer or attorney before going ahead with an application for an SBA loan.

Here is a URL for the application form for a Paycheck Protection Program loan. https://home.treasury.gov/system/files/136/Paycheck-Protection-Program-Application-3-30-2020-v3.pdf?j=268557&sfmc_sub=124882304&l=3151_HTML&u=8813281&mid=7306387&jb=592&utm_medium=email&SubscriberID=124882304&utm_source=NewsUp_A20Mar225&Site=aicpa&LinkID=8813281&utm_campaign=Newsupdate&cid=email:NewsUp_A20Mar225:Newsupdate:Share+the+application:aicpa&SendID=268557&utm_content=Special

Here is a URL for a borrower’s guide for Paycheck Protection Program loan. https://home.treasury.gov/system/files/136/PPP%20Borrower%20Information%20Fact%20Sheet.pdf?j=268557&sfmc_sub=124882304&l=3151_HTML&u=8813282&mid=7306387&jb=592&utm_medium=email&SubscriberID=124882304&utm_source=NewsUp_A20Mar225&Site=aicpa&LinkID=8813282&utm_campaign=Newsupdate&cid=email:NewsUp_A20Mar225:Newsupdate:accompanying+borrower+guide:aicpa&SendID=268557&utm_content=Special

Here is a URL for the Small Business Administration’s interim final rule for Paycheck Protection Program loans.  https://www.sba.gov/sites/default/files/2020-04/PPP–IFRN%20FINAL_0.pdf

Disaster loss election available

Since President Trump invoked the Robert T. Stafford Disaster Relief and Emergency Assistance Act when he declared the coronavirus outbreak to be a national emergency, disaster losses are eligible to be carried back one year under Internal Revenue Code Section 165(i) .  Taxpayers should consider which tax year the losses they incur relating to the COVID-19 crisis will have the best tax benefit.

Unemployment insurance

The Act includes a temporary Pandemic Unemployment Assistance program through December 31, 2020 to provide payments to people who traditionally aren’t eligible for unemployment benefits, including self-employed persons, independent contractors and those with a limited work history, who are unable to work as a direct result of the coronavirus public health emergency.

Unemployment compensation benefits are increased an additional $600 per week to each recipient of unemployment insurance or Pandemic Unemployment Assistance for up to four months.

Unemployment benefits are extended an additional 13 weeks through December 31, 2020 when state unemployment benefits are no longer available.

Railroad unemployment benefits are also increased like other unemployment benefits explained above, and the 7-day waiting period for railroad unemployment insurance benefits is temporarily eliminated through December 31, 2020.

For details about how these changes affect your situation, consult with your tax advisor or write to me at mgray@taxtrimmers.com.

 

 

What does the Federal tax due date change to July 15, 2020 cover?

The IRS has issued Notice 2020-18 and posted FAQs at the IRS web site explaining what the Federal tax due date extension to July 15, 2020 covers.  The IRS has also issued Notice 2020-23, applying the extension to more tax returns and tax payments.

The extension doesn’t apply to all federal taxes.  For example, it applies to federal income tax returns and gift tax returns and tax payments, including estimated income tax payments, due on April 15, 2020, and June 15, 2020,  but doesn’t apply for federal payroll tax returns,  or some excise taxes,

Notice 2020-23 says the extension to July 15, 2020 also applies to federal income tax returns and payments due on or after April 1, 2020 and before July 15, 2020, including calendar year or fiscal year corporate income tax returns, calendar or fiscal year partnership returns, calendar or fiscal year income tax returns for estates and trusts, estate and generation-skipping tax returns and estate tax installment payments under certain tax elections, exempt organization business tax returns, and quarterly estimated income tax payments.

The extension also doesn’t apply to the due date of filing amended income tax returns, corporate requests for quick refunds of estimated tax payments (Form 4466), the time for completing retirement account rollovers, or for taking excess deferrals contributed to a 401(k) plan out of the plan (due April 15.)

The extension does apply to contributions for 2019 to IRAs (including Roth IRAs) and Health Savings Accounts (HSAs).

Nothing needs to be done to get the due date extension to July 15, 2020.  The due date has simply been changed.

Penalties for late filing of income tax returns and penalties for late payment of income taxes won’t apply for income tax returns and income tax estimated tax payments otherwise due on April 15, 2020 that are filed and paid by July 15, 2020.

If a taxpayer needs additional time to file its 2019 income tax return beyond July 15, 2020, it can file an automatic extension to file form by July 15, 2020, showing the estimated tax due.  The due date for paying the tax isn’t extended beyond July 15, 2020, and late payment penalties plus interest will apply for 2019 income taxes not paid by July 15, 2020.

If a taxpayer has scheduled an automatic payment of income taxes on April 15, 2020 for an e-filed income tax return, the taxpayer may call IRS e-file payment services 24/7 at 888-353-4537 to cancel the payment.  The IRS recommends that you wait 7 to 10 days after your tax return has been accepted before calling and the request must be received no later than 11:59 p.m. ET two business days before the scheduled payment date.  The taxpayer should then go to www.irs.gov/payments/direct-pay to schedule a payment for July 15, 2020.

Estimated tax payments that were previously scheduled using Direct Pay can be cancelled and rescheduled at www.irs.gov/payments/direct-pay.  You will need the transaction number for the scheduled transaction.

The California Franchise Tax Board has announced it is conforming to the federal due date extension for income tax returns and for tax payments, including both the first and second estimated tax payment for 2020.

If you have a question about this matter, call the IRS, consult with your tax advisor or write to me at mgray@taxtrimmers.com.

Here’s a link to Notice 2020-18. https://www.irs.gov/pub/irs-drop/n-20-18.pdf

Here’s a URL to IRS Notice 2020-20, extending the due date for federal gift tax returns and generation skipping tax returns with respect to a gift. https://www.irs.gov/pub/irs-drop/n-20-20.pdf

Here’s a link to the FAQs. https://www.irs.gov/newsroom/filing-and-payment-deadlines-questions-and-answers

Here’s a URL to Notice 2020-23, applying the federal due date extension to more tax returns.  https://www.irs.gov/pub/irs-drop/n-20-23.pdf

Federal tax deadline extended from April 15 to July 15

Treasury Secretary Mnuchin has announced the federal tax deadline for filing 2019 income tax returns and making tax payments has been extended from April 15 to July 15, 2020.

Here is the text of his tweet:

“At @realDonalTrump’s direction, we are moving Tax Day from April 15 to July 15.  All taxpayers and businesses will have this additional time to file and make payments without interest or penalties.”

California will probably conform to the due date change.  (California previously announced extending the due date to June 15, 2020.)

Final Qualified Opportunity Zone regulations increase benefits

The IRS issued the final regulations for Qualified Opportunity Zones, TD 9889, on December 20, 2019 and they were published in the Federal Register on January 13, 2020.  The final regulations are generally effective for taxable years beginning after March 13, 2020, but taxpayers may elect to apply them for taxable years beginning after December 31, 2017 (for most taxpayers, 2018 and 2019.)  If taxpayers decide to rely on proposed regulations previously issued by the IRS, they must totally follow the proposed regulations — no cherry picking!  Alternatively, if the final regulations are selected for 2018 and 2019, the taxpayer must solely rely on those.

Here’s a link to the regulations in the Federal Register: https://www.federalregister.gov/documents/2020/01/13/2019-27846/investing-in-qualified-opportunity-funds

The final regulations are generally more taxpayer-friendly than the proposed regulations, but there are some rules in the proposed regulations that are more favorable for some taxpayers.

My printout of the final regulations with the preamble is 543 pages.  I won’t explain them in detail here, but hit a few highlights.  If you are thinking of investing or have invested in a Qualified Opportunity Zone, I highly recommend that you work with a tax professional who has studied the rules.

When investing in a Qualified Opportunity Zone investment, due diligence is essential.  This is the type of investment that will attract fraudsters as organizers.  You won’t get the tax and investment benefits if the organizer steals your money.

Very briefly and over-simplified, the benefits of Qualified Opportunity Zone investments are: (1) Defer the taxation of capital gains until the earlier of an inclusion event (such as selling the investment) or December 31, 2026; (2) If the investment is held at least five years no later than December 31, 2026, 10% of the original gain becomes tax free; (3) If the investment is held at least seven years no later than December 31, 2026, 5% of the original gain becomes tax free; (4) If the investment is held more than 10 years, the appreciation of the investment becomes tax free.  Note that (1) in order to get ALL of the tax benefits, the investment must have been made by December 31, 2019, (2) the tax on at least 85% of the deferred capital gain must be paid for the tax year that includes December 31, 2026.

Remember that states might not conform to the Qualified Opportunity Zone rules.  For example, California hasn’t conformed at this time.

The Opportunity Zones are designated by the states.  You can likely locate them by searching online for “Qualified Opportunity Zones” and the state.  These investments are becoming available through investment advisors.  Alternatively, married couples can set up their own Qualified Opportunity Zone fund, or taxpayers otherwise can join together to make these investments.  (This is NOT a do-it-yourself project!  Only do it with professional help!)

Here are a few comparisons of the proposed and final regulations.

Under the proposed regulations, the taxpayer had to sell the investment (corporation, LLC or partnership interest) in order to get the 100% exclusion of appreciation within the fund after holding the investment (called a Qualified Opportunity Fund or QOF) for more than 10 years.  Under the final regulations, the exclusion can be claimed when the QOF sells a Qualified Opportunity Zone asset (for example, a building.)

Under the proposed regulations, a property that was abandoned or otherwise left vacant for 5 years or longer could be treated as “originally used” for the purposed of the Original Use Test.  Under the final regulations, the period is reduced to 3 years or longer, or only 1 year if the property was vacant before the designation of its location as a Qualified Opportunity Zone.

In order to defer the taxation of capital gains, the gain the taxpayer wishes to defer must be invested in the QOF within 180 days after the sale.

Under the proposed regulations, gains from the sale of Section 1231 assets (business assets) had to be netted for the taxable year and only Section 1231 gains in excess of losses could be deferred and invested in QOF.  Because the net gain couldn’t be determined until the end of the year, the time for the 180 day reinvestment started as of the end of the year of the sale.  Under the final regulations, gains from the sale of Section 1231 assets, without regard to Section 1231 losses, can be deferred and invested in a QOF.  The time for the 180 day reinvestment starts on the date of the sale.  When the gain becomes taxable, it will retain its status as a Section 1231 gain.

(Note that the proposed regulations and final regulations both provide that capital gains, not reduced by capital losses, are eligible for tax deferral by reinvesting them in a QOF.  The measuring date for 180 day reinvestment of capital gains is the date of the sale.)

For investors in a partnership or S corporation and for beneficiaries of estates and non-grantor trusts, called pass-through entities, the proposed regulations provided the ratable share of the capital gain from the passthrough entity could be reinvested in a QOF (1) within 180 days of the actual date of a sale or exchange by the passthrough entity, or (2) within 180 days after December 31 of the taxable year in with the gain was incurred.  Since it may be some time before the information is determined after the end of the taxable year, the final regulations add a third option, (3) within 180 days after the due date, WITHOUT EXTENSIONS, of the pass-through entity’s tax return for the taxable year in which the sale or exchange took place (generally, either March 15 or April 15 of the following year.)

The final regulations provide that taxpayers may elect to have the 180-day period begin on either the date an installment sale payment is received or on the last day of the taxable year in which the taxpayer would have recognized the gain under the installment method.  If the payment date is selected, the taxpayer must continue to follow that method in future years.  Also, installment sale gains from sales in years before January 1, 2018 are eligible for reinvestment in a QOF and tax deferral.

The final regulations clarify that nonresident aliens may defer the tax on capital gains that would otherwise be subject to U.S. tax by investing the gains in a QOF.

Under the proposed regulations, there was an inclusion event requiring the taxation of deferred gains for all of the shareholders if a QOF organized as an S corporation had a change of ownership exceeding 25% before the holding period requirements were met.  Under the final regulations, this requirement has been eliminated.  Only the shareholders who transfer their shares will have an inclusion event.

You can see from these changes that taxpayers will need to determine based on their own facts which set of regulations to choose.  As I write this, there is still time to defer federal income taxes by investing in a QOF for sales made late in 2019.

There are many additional provisions, including operating rules for Qualified Opportunity Zone investments, that I haven’t discussed here.  Once more, see your tax advisor for details.

 

Will any of these extenders cut your tax bill for 2018 or 2019?

The domestic spending bill, H.R. 1865, Further Consolidated Appropriations Act, 2020, enacted on December 20, 2019, includes the extension of several tax breaks that previously expired on December 31, 2017.

If you qualify, you can amend your 2018 federal income tax returns to claim a refund and use the tax breaks on your 2019 federal income tax returns.  Remember the breaks might not apply to your state income tax return.  See your tax advisor.

Here are some of the extended tax breaks.

  • The exclusion for up to $2 million ($1 million for married, filing separately) of discharged qualified principal residence indebtedness has been extended to discharges before January 1, 2021.
  • The treatment of mortgage interest insurance premiums as residential mortgage interest has been extended to payments before January 1, 2021.
  • The “above the line” deduction for up to $4,000 of qualified education expenses for taxpayers with modified adjusted gross income up to $65,000 ($130,000 for married, filing joint returns) has been extended to payments before January 1, 2021.  If modified adjusted gross income exceeds the thresholds, the deduction limit is reduced to $2,000 until the taxpayer’s adjusted gross income reaches $80,000 ($160,000 for married, filing joint returns.)
  • The floor for the medical expense deduction is reduced from 10% to 7.5% and there is no alternative minimum tax adjustment for payments before January 1, 2021.
  • The Health Insurance Costs Credit has been extended to payments before January 1, 2021.  It was previously scheduled to expire on December 31, 2019.  Since it won’t apply to most people who read this, I won’t get into the details here.
  • The Energy Efficient Home Credit is extended through 2020 for homes acquired through 2020.  The credit applies to contractors who construct or manufacture qualifying energy efficient homes in the year the homes are sold or leased for use as a residence.  The credit is $2,000 or $1,000, depending on whether the home is constructed or manufactured and on the energy savings standards satisfied.
  • The Nonbusiness Energy Property Credit is extended to property placed in service before 2021.  The nonbusiness energy property credit is (1) 10% of the amounts paid or incurred for qualified energy efficiency improvements installed during the tax year, and (2) 100% of the amounts paid or incurred for qualifed energy property, subject to limits.  The maximum lifetime credit is $500.
  • The Qualified Fuel Cell Motor Vehicles Credit has been extended to motor vehicles purchased before 2021.  The credit applies for vehicles propelled by combining oxygen with hydrogen and creating electricity.  The base credit is $4,000 for vehicles weighing 8,500 pounds or less.  Heavier vehicles can qualify for up to a $40,000 credit.
  • The Two-Wheeled Plug-In Electric Vehicle Credit has been extended to vehicles acquired before 2021.
  • The Alternative Fuel Refueling Property Credit has been extended to property placed in service before January 1, 2021.  The credit is 30% of the cost of any qualified alternative fuel vehicle refueling property placed in service by the taxpayer during the tax year.
  • The Employer Credit for Paid Family and Medical Leave has been extended through 2020.  Eligible employers may claim a general business credit equal to an applicable percent of the amount of wages paid to qualified employees during any period in which the employees are on family and medical leave, provided the rate of payment under the program is at least 50% of the wages normally paid to the employee.
  • The Work Opportunity Credit has been extended through 2020.  Employers are generally allowed a 40% credit for qualified first-year wages paid during the tax year to individuals who are members of a targeted group of employees.

This list is not complete.  See your tax advisor for more details.

Urgent news if you have a retirement account with a Conduit Trust named beneficiary

Legislation called the Setting Every Community Up for Retirement Enhancement (SECURE) Act of 2019, enacted December 20, 2019, renders any estate plan involving a Conduit Trust beneficiary of a big retirement account (including 401(k) accounts and IRAs) obsolete.

A provision of the Act repeals “stretch” payments over the life expectancy of most successor beneficiaries for inherited retirement accounts of decedents who die after December 31, 2019.  The maximum time for distributions is 10 years after the death of the decedent/plan participant.

What is a Conduit Trust?  The purpose of a Conduit Trust was to control a retirement account, usually with a minor beneficiary, and still qualify for distribution of the account over the beneficiary’s life expectancy, called stretch distributions.  In order to qualify, the account had to be disregarded for income tax reporting with respect to the retirement account distributions.  The way this was accomplished was to require that any retirement account distributions received by the trust be immediately distributed to the beneficiary.

Since life expectancy distributions are usually very small, a huge distribution would be payable to the beneficiary 10 years after the death of the account owner, probably subject to very high federal income tax rates and possibly subject to mismanagement by the beneficiary.

There are some exceptions to the new rule, including (1) the surviving spouse of the employee/participant, (2) a child who is under age 21, (3) certain disabled persons, (4) certain chronically ill persons, and (4) an individual not previously described who is not more than 10 years younger than the employee/participant.

When a child of the decedent reaches age 21, the balance of the account must be distributed within 10 years.

If a beneficiary of a retirement account inherited from a person deceased before 2020 is deceased after 2019, the 10 year limit applies to that person’s successor beneficiaries.

Since the Conduit Trust no longer provides a tax benefit, employees/participants with retirement accounts should consult with their attorney and tax consultant about eliminating the Conduit Trust as a beneficiary and making alternative estate plans for their retirement accounts.

Major federal retirement changes enacted, Kiddie tax change repealed

As part of the domestic spending bill, H.R. 1865, Further Consolidated Appropriations Act, 2020, enacted on December 20, 2019, major federal retirement changes were enacted in Division O, the Setting Every Community Up for Retirement Enhancement Act of 2019, nicknamed the SECURE Act.  As part of the SECURE Act, Congress also repealed changes to the Kiddie tax enacted in the Tax Cuts and Jobs Act of 2017.  Taxpayers may elect to amend their 2017 and 2018 individual income tax returns to use this Kiddie tax change.

Here are highlights.  Please consult with your retirement plan consultant or tax consultant for more details.

  • Effective for plan years beginning after December 31, 2020, the rules for multiple employer plans have been relaxed so that if one employer violates the qualification rules, the entire plan won’t be disqualified.  (The “one bad apple rule.”)
  • Effective for plan years beginning after December 31, 2019, the maximum default contribution for a plan with automatic enrollment is increased from 10% to 15%.
  • Effective for taxable years beginning after December 31, 2019, the tax credit for retirement plan startup cost for small employers is increased from the lesser of (1) $500 or (2) 50% of qualified startup costs to the greater of (1) $500 or (2) the lesser of (a) $250 times the number of nonhighly compensated employees of the employer who are eligible to participate in the plan or (b) $5,000.  The credit applies for the first three years of the adoption of the plan.  It’s also available for employers that convert an existing plan to an automatic enrollment design.
  • Effective for taxable years beginning after December 31, 2019, amounts includable in an individual’s income paid to aid the individual in pursuing graduate or postdoctoral study, such as a fellowship, stipend, or similar amount, is treated as compensation for the limitation on IRA contributions.
  • Effective for taxable years beginning after December 31, 2019, the prohibition of contributions to an IRA by an individual who has reached age 70 ½ has been repealed.  The excludable amount for direct distributions to a charity after age 70 ½ is reduced by any contributions to an IRA after age 70 ½.
  • Effective for plan loans made after December 20, 2019, amounts loaned from a plan using a credit card or similar arrangement will be treated as deemed plan distributions and not as loans.
  • Effective for plan years beginning after December 31, 2019, when a plan will no longer accept a lifetime income option, such as an annuity, as a plan investment, employees will be able to make direct transfers of the lifetime income investment to an IRA or another retirement account within the 90-day period ending on the date when the lifetime income investment is no longer accepted by the plan.
  • Effective for plan years beginning after December 31, 2020, employers are required to permit employees to make elective deferrals if the employee has worked at least 500 hours per year with the employer for three consecutive years and has met the age requirement (age 21) by the end of the three-year period.  Each 12-month period for which the employee has at least 500 hours of service shall be treated as a year of service for vesting purposes.  This (500 hour) requirement will not apply for collectively-bargained plans.   Employers may elect to exclude these employees for the nondiscrimination and top-heavy requirements.  Employer contributions won’t be required for these individuals.
  • Effective for distributions made after December 31, 2019, distributions of up to $5,000 per birth or adoption can be made free of the 10% early distributions penalty during the one-year period beginning on the date on which a child of the individual is born or on which the legal adoption by the individual of an eligible adoptee is finalized.  (An eligible adoptee is any individual, other than a child of the taxpayer’s spouse, who has not reached age 18 or is physically or mentally incapable of self-support.)  Taxpayers must include the name, age, and taxpayer identification number of the child or adoptee on their tax return.  The distributions may be recontributed to an individuals eligible retirement plan, subject to certain requirements.
  • Effective for distributions after December 31, 2019, the age at which distributions are required to be made from an IRA or a qualified plan is increased from age 70 1/2 to age 72.  The age at which qualified charitable distributions of up to $100,000 per year from an IRA is unchanged at 70 1/2.
  • Retroactively effective for plan years beginning after December 31, 2017, the actuarial rules for defined benefit plans of privately-owned community newspapers are relaxed.  This is targeted relief benefiting this group.
  • Retroactively effective for defined contribution plan years beginning after December 31, 2015 and effective for IRA contributions after December 20, 2019 , difficulty of care payments that are excludable from gross income are treated as compensation for nondeductible IRA contribution limits.  These are payments by (1) a state or political subdivision of a state, or (2) a qualified foster care placement agency as compensation for providing additional care needed for qualified foster individuals.  The payments are provided when a qualified foster individual has a physical, mental or emotional disability for which the state has determined (1) there is a need for additional compensation to care for the individual; (2) The care is provided in the home of the foster care provider; and (3) the payments are designated by the payor as compensation for that purpose.
  • Effective for taxable years beginning after December 31, 2019, an employer may adopt a qualified retirement plan up to the extended due date of the employer’s federal income tax return and the plan can be retroactively effective for the taxable year.  Although employee contributions can’t be made after the year-end, employer contributions can be made up to the extended due date of the income tax return.  (This rule currently applies to SEP accounts.)
  • Effective for plan years beginning after December 31, 2021, the IRS is to issue procedures for employers who have similar individual account or defined contribution accounts to elect to file combined annual reports (Form 5500.)
  • The IRS is to issue model disclosures showing the estimated lifetime income based on the account balance of a plan participant, to be reported at least annually.  The IRS is also required to provide guidelines for how the income amount should be computed.
  • A fiduciary safe harbor is adopted so plan fiduciaries will satisfy the prudence requirement when selecting an insurer for a guaranteed retirement income (annuity) contract and will be protected from liability for losses that result to to participant or beneficiary due to an insurer’s inability to satisfy its financial obligations under the contract.  (A favorable provision for insurers, not so great for participants and beneficiaries.)
  • Effective on December 20, 2019, and electively retroactive to plan years beginning after December 31, 2013, the nondiscrimination rules are modified to protect older, longer service participation.  These rules are complex and beyond the scope of this explanation.  The rules will allow a closed or frozen plan to continue in existence.
  • Effective for distributions made after December 31, 2018, from Section 529 (educational savings) plans, registered apprenticeship expenses will be considered “qualified higher education expenses.”  Expenses for fees, books, supplies and equipment required for the designated beneficiary to participate in a registered apprenticeship program are qualified expenses for distributions from such a plan.
  • Effective for distributions made after December 31, 2018, up to $10,000 of qualified education loan repayments will be considered “qualified higher education expenses” for distributions from a Section 529 plan.  Student loan interest paid using distributions from a Section 529 plan won’t otherwise qualify for a tax deduction.
  • Effective for distributions made with respect to employees or plan participants who die after December 31, 2019, inherited retirement accounts must generally be distributed within 10 years after the employee or participant’s death.  There is an exception permitting “stretch” distributions based on life expectancy to (1) the surviving spouse of the employee/participant, (2) a child of the employee/participant who hasn’t reached majority, (3) certain disabled beneficiaries, (4) chronically ill beneficiaries, or (4) other beneficiaries who are not more than 10 years younger than the employee.  Once a child of the employee/participant reaches majority, the balance of the account must be distributed within 10 years after the date majority is reached.

The effective date for collective bargaining agreements and government plans will generally be for distributions with respect to employees or plan participants who die after December 31, 2021.

There is an exception for certain existing annuity contracts.

The ten-year distribution requirement also applies to successor beneficiaries of beneficiaries who inherited accounts before December 20, 2019.  (If an employee/participant was deceased during 2019, a surviving spouse might decide to disclaim IRA survivor benefits so that successor beneficiaries will be able to claim “stretch” distributions of benefits for which the election would otherwise be lost.)

Commenters have suggested  designating a charitable remainder trust as a beneficiary of a retirement account as a way to avoid the 10-year limit.  The plan distribution to the trust isn’t subject to current taxation.  Distributions are required to be made annually to the beneficiary(ies) of the CRT, which will probably carry taxable income.  Depending on how long the beneficiary(ies) live, some or all of the balance could go to a charity.  Seek tax and legal counsel when considering this alternative.

  • A provision of the Tax Cuts and Jobs Act of 2017 changed the Kiddie Tax that apples to the unearned income of certain individuals.  The rule applies to a child who (1) is required to file a tax return; (2) does not file a joint income tax return for the tax year; (3) the child’s investment income exceeds a threshold ($2,200 for 2019); (4) either of the child’s parents are alive at the end of the year; and (5) At the end of the tax year, the child is either (a) under age 18; (b) under age 19 and doesn’t provide more than half of his or her own support with earned income; or (c) under age 24, a full-time student, and does not provide more than half of his or her own support with earned income.  Under the Tax Cuts and Jobs Act, the child’s income tax is computed using the tax rate schedule that applies to estates and trusts.  This provision was causing a hardship, especially for survivors of military casualties.   Under the SECURE Act, this change is repealed, effective for tax years beginning after December 31, 2019.  Taxpayers may elect to retroactively apply the change for tax years 2018 and 2019.   This means children will generally be taxed on their unearned income at their parent’s marginal tax rate.  For 2019, the 37% marginal tax rate applies for single persons with taxable income over $510,300 and for estates and trusts with taxable income over $12,750.
Tax and financial advice from the Silicon Valley expert.