Tax and financial advice from the Silicon Valley expert.

IRS issues Safe Harbor for rental real estate qualification for 20% qualified business income deduction

One of the most controversial items in the Tax Cuts and Jobs Act of 2017, enacted during December, 2017, is whether rental real estate qualifies as a trade or business, and therefore qualifies for the 20% deduction for qualified domestic business income under Internal Revenue Code Section 199A.

Late January, 2019, the IRS issued Notice 2019-07.  The Notice is a proposed Revenue Procedure that outlines a safe harbor for rental real estate operations to qualify as a trade or business and qualification for the 20% of qualified domestic business income deduction under Internal Revenue Code Section 199A.

The Revenue Procedure is proposed to be effective for taxable years ending after December 31, 2017.

The advantage of following the Revenue Procedure is avoiding a dispute and possible litigation with the IRS about whether a rental real estate operation qualifies for the deduction.

Under the Revenue Procedure, a rental real estate enterprise must meet a series of requirements.

Taxpayers must either treat each property held for the production of rents as a separate enterprise or treat all similar properties held for the production of rents as a single enterprise.  Commercial and residential real estate may not be part of the same enterprise.  Taxpayers must report their real estate operations consistently from year-to-year unless there has been a significant change in facts and circumstances, such as acquiring another property.

Here are the requirements to be met.

  1. Separate books and records are maintained to reflect income and expenses for each rental real estate enterprise.
  2. For taxable years beginning before January 1, 2023, 250 or more hours of rental services are performed each year with respect to the rental enterprise.  For taxable years beginning after December 31, 2022, the test must be met in any three of the five consecutive taxable years that end with the taxable year.
  3. The taxpayer must maintain contemporaneous records, including time reports, logs, or similar documents regarding (i) hours of all services performed; (ii) description of services performed; (iii) dates on which such services were performed; and (iv) who performed the services.  The records are to be made available for inspection at the request of the IRS.  This requirement doesn’t apply for taxable years beginning before January 1, 2019.

Rental services include (i) advertising to rent or lease the real estate; (ii) negotiating and executing leases; (iii) verifying information contained in prospective tenant applications; (iv) collection of rent; (v) daily operation, maintenance and repair of the property; (vi) management of the real estate; (vii) purchase of materials; and (viii) supervision of employees and independent contractors.

Rental services may be performed by owners or by employees, agents, and/or independent contractors of the owners.

The term “rental services” does not include financial or investment management activities, such as arranging financing, buying property, studying and reviewing financial statements or operations reports, or planning, managing or constructing long-term capital improvements, or hours spent traveling to and from the real estate.

Rental real estate rented or leased under a triple-net lease requiring the tenant or lessee to pay taxes, fees and insurance and to be responsible for maintenance activities for a property in addition to rent and utilities.

(Remember that, under the final Section 199A regulations, property rented to a commonly-controlled entity is considered to be the same type of business income as the entity it is rented to, even for a triple-net lease.)

Real estate used by the taxpayer (including an owner or beneficiary of a relevant passthrough entity relying on the safe harbor) also doesn’t qualify for the safe harbor.

The taxpayer or relevant passthrough entity must attach a statement to the tax return on which it claims the Section 199A deduction or passes through Section 199A information that the requirements of the Revenue Procedure are satisfied.  The statement must be signed by the taxpayer or an authorized representative of an eligible taxpayer or relevant passthrough entity.  Here is the required wording of the statement. “Under penalties of perjury, I (we) declare that I (we) have examined the statement, and, to the best of my (our) knowledge and belief, the statement contains all the relevant facts relating to the revenue procedure, and such facts are true, correct, and complete.”  The individual or individuals who sign must have personal knowledge of the facts and circumstances related to the statement.

The Revenue Procedure only gives a safe harbor to qualify for the 20% of qualified domestic business income deduction.  Taxpayers may still claim they qualify under a different standard.  (These are excerpts of an analysis by Gary McBride, CPA and attorney.)

The IRS is generously applying a service-based standard in the Revenue Procedure.  Another standard has also been applied to determine that rental real estate operations are a trade or business.

The IRS’s position is based on a decision of the Second Circuit Court of Appeals, Grier v. U.S., 218 F. 2d 603, 2nd Cir., 1955.)  This position is only followed by the Tax Court in the Second Circuit.  Under the Grier decision, it is highly unlikely the rental of one single family residence can be a trade or business for taxpayers located in the Second Circuit Court of Appeals territory.

In other cases, the courts have looked to whether the taxpayer was responsible for the maintenance of the property.  (Hazard v. Commissioner, 7 TC 372 (1946) acq. 1946-2 CB 3; Reiner v. US, 22 Fd. 2nd. 770 7th Circ., 1955).)  In GCM 38779 (7/27/81), the IRS Chief Counsel rejected an IRS national office audit group request to remove the acquiescence to Hazard.

If it is practical, I recommend that you follow the safe harbor in the Revenue Procedure to avoid having an IRS controversy.

You might find it challenging to get the time accounting records from independent contractors who perform services for you.  You should have an understanding with them about the requirements before the work is done.

I hope it is apparent to our readers that you should get help with a professional tax advisor when applying these rules.

Remember Congress needs to pass a technical correction for bonus depreciation of Qualified Improvement Property

Congress passed a tax simplification provision in the Tax Cuts and Jobs Act of 2017 to consolidate the eligibility of certain real estate improvements for tax favored treatment.  Specifically, Qualified Improvement Property is defined as an improvement to an interior portion of a building that is nonresidential real property provided the improvement is placed in service after the date that the building was first placed in service.  Improvements related to the enlargement of the building, an elevator or escalator, or the internal structureal framework of the building are not qualified improvement property.

Congress intended to a assign a 15-year depreciable life to Qualified Improvement Property, which would have qualified it for 100% bonus depreciation.  (Effective for property acquired and placed in service after September 27, 2017 and before January 1, 2023.   The rate phases down thereafter.)  In its hurry to pass the legislation, the 15-year life provision was missed.  That means, unless Congress passes a technical correction, Qualified Improvement Property has a 39-year depreciable life and doesn’t qualify for bonus depreciation.

Taxpayers who plan to use bonus depreciation for Qualified Improvement Property for 2018 should consider extending the due date for their income tax returns.  Consult with a tax professional about alternative ways to deal with the situation.  It’s likely, but not certain, that Congress will eventually pass a technical correction and permit amended income tax returns to claim bonus depreciation on tax returns where it should have been available.

Alternatively, taxpayers can claim the Section 179 expense election for Qualified Improvement Property.  The maximum amount that a taxpayer may elect to expense for 2018 is $1 million.  The maximum deduction is reduced when the taxpayer places more than $2.5 million of property qualifying for the Section 179 election in service during 2018.  The thresholds are indexed for inflation after 2018.  The Section 179 deduction also can’t reduce taxable income below zero.  Any excess is carried forward.

Amended 2017 returns required for fiscal year passthrough entities

Since proposed regulations were not issued for owner/beneficiary information relating to the 20% of qualified business income deduction until August 8, 2018 and it wasn’t listed on the 2017 forms, that information was omitted on many passthrough entity income tax returns for fiscal years ending in 2018.  According to proposed regulations issued on August 8, 2018, that information should be included on the 2018 income tax returns for the owner.  (Proposed Regulations Sections 1.199A-1(f)(2) and 1.643(e)-(2)(ii).)  If that information is listed on the owner’s Schedule K-1, it’s presumed to be zero.  (Proposed Regulations Section 1.199A-6(b)(3)(iii).)

Lessons From Our Fire Recovery Experience

Our family home was destroyed in a fire two days before Thanksgiving, 2015.  On November 29, 2018, we sent the final payment to the fire restoration company, three years after the destruction of our home.  (The restoration was finished during September, 2018 and we received the final payment from our home insurance claim late November, 2018.)  I thought readers might be interested in what our experience was like and the lessons that we learned that might help other victims of fires and to prepare for the possiblility of a fire or other disaster.

First, we had enough insurance to cover most of the cost of restoring our home and personal property.  The process of getting those benefits was rather horrific, but we got through it without the help of a public adjuster.  I’m not certain that “everyman” could.  Since I am a CPA with business management experience and my wife, Janet, understands home design, we were able to manage the process with a lot of help.

What is a public adjuster?  A public adjuster is a company that helps people who have suffered disaster losses to get the maximum recovery from their insurance company.  For this service, they receive a hefty fee.  I understand it’s 5 – 10% of the total recovery.  For some people, this is a worthwhile investment.  We were able to get the policy limits for our recovery, so we were fortunate to get through the process without a public adjuster.

It’s probably a good idea to review your policy benefits with your property insurance agent to really understand your coverage.  I understand some people have lost their coverage after making a claim like this.  So far, our property insurance company is continuing ours.

As I watched our home burn, a representative from a fire recovery company put his arm over my shoulder and reassured me, “Mike, I’m going to rebuild a beautiful new home for you.”

I asked him, “Can you have the rebuild done by next Christmas?”  He reassured me that he thought he could.  I might not have given them the job if I knew in advance that it would take almost three years!

We spent the night of the fire sleeping in my daughter’s front room.  It was one of the most miserable and uncomfortable nights of my life.  The next week or so our insurance company paid for our lodging at a Residence Inn, which was great.  The Residence Inn provided breakfast and a Happy Hour buffet on several nights, so we didn’t have to go out for dinner on most nights or for breakfast.

Our homeowner’s insurance policy provided living accomodations replacement for two years, so we shortly moved to a furnished rental home located close to my daughter’s family.  My granddaughters thought it was great that Grandma could walk and pick them up from school.  The insurance also covered additional living expenses, including some meals and additional mileage to commute to work compared to our regular residence, and duplicate expenses for utilities and garbage.

It’s very important to keep good records during this process to identify duplicate living expenses, including the utilities costs for both your regular residence and the rental residence, to get reimbursements for duplicate expenses.  (In Santa Clara County, garbage  pickup is included on the real estate tax bill.)

When our two years was over, the insurance company informed us they would no longer cover the rental for the home.  The rebuilding of our home was only about half done.  There wasn’t even a front door and no furnace for heat!  We moved into our unfinished home and slept on the (unfinished) floor using inflatable mattresses.  There was one working sink and one working toilet.  We lived in our home while the restoration company finished rebuilding it.

Your property insurance agent does not handle your fire loss claim.  The insurance company assigns adjusters to do that.  We had separate adjusters for the building and for personal property (furniture, clothing, etc.)  The adjuster might be an employee of the insurance company of an independent contractor.  A big irritation in this process is the insurance company routinely rotates adjusters off cases every few months.  This means your file is neglected for some time and you have to get another person up to speed.  We kept in touch with our insurance agent to act as our advocate with the company to keep the momentum going processing our claim and reduce the rotation of adjusters on our case.

The initial two people that we worked with at our restoration company were actually very helpful.  One of them had previous experience as an adjuster for a property insurance company.  They gave us some coaching about the process and how to deal with our property insurance company.  The other one actually wrote some software for us to make it easier to make the list of personal property lost in the fire.  This was enormously helpful.  With his software, we could look up items on the internet to give references for replacement costs and where they came from.  These people left the company, one about a year after our loss when we made the initial personal property loss report and the other a few months before our house rebuild was finished, requiring us to get another representative up to speed to finish the job.  This created more inconvenience because he wasn’t familiar with our case.

Recreating our personal property list was a huge job.  It required listing in detail all of the items in each room of the house.  I have a pretty good memory and can summon a picture of what was where.  Not everyone is so fortunate.  My wife, Janet, walked through stores looking at the shelves for items that we lost, taking picture of items and their prices with her smart phone.  Although the personal property adjusters said to focus on the high value items, small value items really add up.  Looking back, it would have been great to have photos or videos as a tour of the house showing everything.  We had CDs of our photos that weren’t kept outside the house in a safe deposit box, so they burned.  Now many people are putting photos and documents “in the cloud”.  A good idea!

Again, be sure to keep your receipts for replacement items, including clothing, towels, razors, toothbrushes, toothpaste, etc.  You also have to list in detail what the receipts are for.  (For example, state if out bought the Phantom of the Opera DVD.)  You might need to attach your receipt to a separate piece of paper with a list of items purchased with the amounts.

Initially, our policy paid for the depreciated value of items.  It paid for replacement cost when we provided copies of receipts and the items were purchased within two years after the fire.  Those receipts are the documentation of the cost of the replacement items.  They can also be important income tax records.  According to the rules for involuntary conversions (such as a fire), if there is any gain from the insurance recovery, it isn’t taxable provided the item is replaced for at least the amount recovered.

Since the rebuild of our home wasn’t done in two years, we ordered some furniture with delayed delivery and put appliances (dishwasher, refrigerator, washing machine, dryer, microwave oven, stove, trash compacter) in the garage.  We couldn’t delay the delivery of some furniture that we bought at a consignment store (a great source for antique/wood furniture!) so we just had them put it in our unfinished home.  As we approached the two year date, our personal property adjuster made an extra effort to come to our home and help us assemble the information so that we reached our policy limit.

We had to replace many documents, like vehicle pink slips, passports, social security cards and birth certificates.  The cost of replacing these items were included in our insurance claim.

Rebuilding our home was like a slapstick comedy.  There were many miscommunications leading to many false starts.

The restoration company was able to make an accurate model of our home, using laser equipment.  Too bad the architect ignored the model.  You’d think the plans might be on file with the City of San Jose.  Nobody got them.  Some of our neighbors have homes with the same exterior and floor plan as ours.  Nobody bothered to check them out.

There were several errors in the plans prepared by the architect.  The architect was not located near our home.  Each time the plans were changed, they had to be approved by the City of San Jose building department.  In some cases, it took months to get the approval for the changes.  Building would usually stop when waiting for the approval.  Finally, we got to the point of harassing our restoration company to get changes processed more quickly and to expedite getting approval by the City of San Jose.

Some examples of the plan corrections:

  • We have an open staircase, which gives a very open look when entering the house. The architect’s plan had an enclosed staircase.
  • We have a family room – kitchen, which is one large open room. The architect’s plan had a wall between the family room and kitchen.
  • We have vaulted ceilings in the master bedroom and the front room. The architect’s plan didn’t have vaulted ceilings.  (This required a major change in the “truss” plans for our roof and changes in the ventilation for the HVAC for the house.)
  • The architect’s plan omitted the linen cabinet for the upstairs hallway.
  • The architect’s plan didn’t include the furnace or air conditioning(!)

The architect and the builder didn’t know which codes applied for some items, such as the insulation for the vaulted ceilings, and how the frame for the house is attached to the foundation.  Items like this required rework and multiple inspections.

City inspections also became an issue.  Waiting between inspections resulted in more delays waiting to continue building.  Finally, I called my city council representative and got the direct telephone number for the inspector and was able to expedite having inspections done.

The builder was in a fog about ordering many items.  Janet and I regularly had to go to the hardware store to keep things moving by buying ceiling lamps, faucets, sinks, toilets, cabinet handles, fireplace mantle, etc.

We had turnover of the construction foreman for the restoration company.  The first foreman was great, but left after only a few weeks on the job.  The second foreman was congenial, but didn’t seem to actively manage the job.  There were several items that he said he would take care of, such as ordering floor tile, getting the gas fireplace, and the mantle for the fireplace, that we ended up taking care of ourselves.  More delays!

If we didn’t manage the reconstruction of our home and keep pressing to get the job done, it might have taken two more years to finish it!

I did quite a bit of research relating to the tax rules for an involuntary conversion (replacement after a disaster.)  I recommend that you consult with a tax expert if your home is destroyed by a fire.  One thing to be aware of is that you apply the exclusion for sale of a residence, $250,000 for an individual or $500,000 for a married couple, before applying the exclusion for replacement property, so you get a basis increase from the involuntary conversion of a principal residence.

In summary, you can’t passively rely on others to take care of the restoration of your home, replacing your property and getting the maximum insurance recovery.  You have to pay attention and be actively involved in the entire process, including watching insurance deadlines.  If someone else says they’ll handle it for you, be prepared to pay a hefty fee and be prepared to be disappointed and step in when necessary.

New IRS guidance for deferral of income from stock options and RSUs

The IRS has issued guidance for a new election to defer taxable income from exercising or vesting of an employee stock option or vesting of restricted stock units (RSUs).  The election is part of the Tax Cuts and Jobs Act of 2017, enacted December 22, 2017.

The new law for the election is at Internal Revenue Code Section 83(i).  The IRS guidance is Notice 2018-97, issued December 7, 2018.  The Notice is 19 pages long.

Congress was trying to provide some relief to employees who have stock-based compensation when the stock isn’t publicly traded or eligible for redemption.  The stock can’t be sold to get the cash to pay taxes.

Under the new law, the income of a taxpayer from exercising an employee stock option or from the vesting of an RSU who makes the election for qualified stock won’t be taxable until the earliest of:

(1) The first date the stock is transferable, including transferable to the employer;

(2) The date the employee first becomes an excluded employee;

(3) The first date on which any stock of the issuing corporation becomes readily tradable on an established securities market;

(4) The date that is five years after the first date the rights of the employee in such stock are transferable or not subject to a substantial risk of forfeiture, whichever occurs earlier; or

(5) The date on which the employee revokes the election (at such time and in such manner as the Secretary of the Treasury (IRS) provides.)

The requirements to qualify for the election are so onerous that I don’t expect many companies to meet them.  In a calendar year, not less than 80% of all employees who provide services to the corporation in the United States or any possession of the United States must be granted stock options or granted RSUs, with the same rights and privileges to receive qualified stock.  Stock options and RSUs usually are not used in such a nondiscriminatory way.

The notice makes it clear that this test applies each year, and grants of options and RSUs in previous years aren’t counted for the test.  Also, the test applies for all employees of the company during the calendar year, regardless of when hired or terminated.

I’m not going to explain in detail who is an “excluded employee”  It’s basically an individual who already owns at least 1% of the company stock or is a key officer of the corporation.

This is a separate election from a Section 83(b) election to treat nonvested stock received as if it was vested, accelerating income from the exercise of a nonqualified stock option.  If a Section 83(b) election is made relating to the exercise of a nonqualified stock option, the transaction isn’t eligible for a tax deferral election under Section 83(i).

If a Section 83(i) election is made for an incentive stock option or a purchase using an employee stock purchase plan, the benefits of those sections no longer apply and the transaction is treated as the exercise of a nonqualified stock option.

The income amount is based on Internal Revenue Code Section 83(a), which is the excess of the fair market value on the later of the date of exercise or the vesting date.  That date also determines when the Section 83(i) election must be made.  The election must be sent to the IRS address for the taxpayer’s federal income tax return no later than 30 days after the later of the date of exercise or the vesting date.

The IRS did not provide an example of a Section 83(i) election in the Notice.  It just says the election “shall be made in a manner similar to the manner in which an election is made under Section 83(b).”  There are important differences.  If you would like to have an example of the election that I drafted, write to me at mgray@taxtrimmers.com.

Any time a corporation transfers qualified stock to a qualified employee, it is required to notify the employee that the employee may be eligible under Section 83(i) to defer income on the stock.  The notice should be provided at the time an amount attributable to the stock would first be includible in the gross income of the employee, or a reasonable time before.  The notice states:

(1) The amount of income to be reported at the end of the deferral period will be based on the value of the stock at the time the rights of the employee first become transferable or not subject to a risk of forfeiture, even if the value of the stock declines before it becomes taxable;

(2) The income recognized at the end of the deferral period will be subject to federal income tax withholding at the highest federal income tax rate, with no reduction for personal exemption credits or estimated tax deductions;

(3) The responsibilities of the employee with respect to the withholding.

If an employer fails to provide the notice, it will be subject to a $100 penalty, up to a maximum of $50,000 per calendar year.

Although the federal income tax is deferred when the election is made, the amount that would otherwise have been taxable is currently subject to federal employment taxes, like social security, medicare and federal unemployment taxes.  (This could still be a hardship for employees who receive no cash and can’t sell the stock.)

Under authority provided to the IRS in the new tax law, the Section 83(i) election by the taxpayer must include an agreement that the deferral stock will be held in an escrow arrangement.  When the income relating to the stock becomes taxable, the corporation may remove shares equal in value to the required income tax withholding.  The shares may be removed up to March 31 of the year following the year the income is taxable.  The remaining shares can then be released to the employee.  The employee can alternatively pay the tax with cash, in which case all of the shares would be released to the employee.

A corporation can preclude its employees from making a Section 83(i) election by declining to establish an escrow arrangement to hold their shares until the federal income tax is paid.

If a corporation intends that employees shouldn’t make Section 83(i) elections for stock received by exercising a stock option or RSU, the terms of the stock option or RSU may provide that no election under Section 83(i) will be available with respect to stock received under the option or RSU.

This new election is a baby step.  I hope Congress provides more helpful relief to employees who receive stock options and RSUs of stock that isn’t publicly traded with more simplified rules in the future.

 

 

 

 

 

 

Opportunity Zones – A new “secret” tax benefit

Capital gains deferral for up to eight years?  Tax free investment growth?  Sounds too good to be true?

The Tax Cuts and Jobs Act of 2017, enacted on December 22, 2017 and mostly effective for individuals for 2018 through 2026, includes a tax benefit that hasn’t been widely discussed, yet.

The tax benefit is for investing in Opportunity Zones.  The reason it hasn’t been widely discussed is the investment community has been waiting for guidelines on how to implement the rules.  On October 19, 2018, the IRS issued proposed regulations for investing in Opportunity Zones (REG-115420-18.)  The proposed regulations answer many, but not all, of the questions relating to the new rules.

A summary of the tax benefits are as follows:

  1. Effective January 1, 2018 through December 31, 2026, if an individual reinvests short- or long-term capital gains from a transaction with an unrelated party within 180 days in Qualified Opportunity Zone (QOZ) property, the reinvested gain won’t be subject to current taxation, but will be deferred until the earlier of the date the QOZ property is sold or liquidated, or December 31, 2026. When it is taxed on December 31, 2026, the gain will retain its character as short-term or long-term capital gain.
  2. If the investment is held for at least five years, the potential tax on 10% of the reinvested gain will be forgiven by a basis adjustment to the QOZ property.
  3. If the investment is held for at least seven years, the potential tax on 5% of the reinvested gain will be forgiven by a basis adjustment to the QOZ property.
  4. This means that, provided the holding period requirements are met and the property is held through December 31, 2026, 85% of the reinvested gain will be taxable on December 31, 2026.
  5. If the QOZ property is held for at least 10 years and the taxpayer makes an election to do so, any additional gain from the ultimate sale or liquidation of the property will be tax free!

Note that only the gain is reinvested, and not the total proceeds like for a Section 1031 exchange.

The investor should keep a side account of cash or liquid investments to provide for paying the tax on the reinvested gain for 2026.  The source of the cash could be the capital recovery for the sale generating the reinvested gains.

The property will usually be acquired by an individual investing in a qualified opportunity fund, and not by a direct investment in the property.

The fund will be organized as a qualified opportunity zone business, conducting a trade or business within a qualified opportunity zone.  The assets of the fund, on average, must consist of at least 90% qualified opportunity zone property.  The proposed regulations include a safe harbor rule permitting the fund up to 31 months to invest the cash received in qualified property, provided the fund has a written plan for the investment.  A major question that hasn’t been answered is whether a rental real estate activity qualifies as a trade or business.  There is an example of converting a factory building to residential rental property in Revenue Ruling 2018-29 that indicates rental real estate should qualify.  (A real estate based business, such as a hotel, certainly does qualify.)

Qualified opportunity zones are designated by the governor for each state.  For example, the governor of California can designate up to 879 tracts, and a list of them are listed on a California Department of Finance web site.  The zones are economically depressed and primarily commercial.  However, many of them are located close enough to more economically advantaged areas to still offer good potential for economic returns.

Remember California has not conformed to this federal tax law.  The federal deferral and exclusions from taxable income don’t apply to California taxpayers and California source income for nonresidents of California.

There are a few aggressive fund managers who are already offering Qualified Opportunity Funds that invest in real estate, with the representation that they can’t guarantee the tax benefits, because of unanswered questions for the rules.

With the release of the proposed regulations, investors can have more confidence investing in qualified opportunity zone funds, but should still use due diligence and consult with their tax advisors before going ahead.  Investors should also consider how the investment fits in their total investment portfolios.

IRS issues proposed regulations for the 20% of domestic trade or business income deduction

The tax deduction of 20% of qualified business income under Internal Revenue Code Section 199A is one of the most complex provisions of the Tax Cuts and Jobs Act enacted on December 22, 2017.

The requirements for qualifying for and computing this deduction add a layer of complexity to our tax laws for owners of unincorporated businesses and S corporations similar to the complexity of the alternative minimum tax, the passive activity loss rules and the net investment income tax.

There are many questions about the details of how to apply the new rules.  On August 8, 2018, the Internal Revenue Service issued proposed regulations (REG-107892-181) as its initial guidance.  The IRS has asked for comments from the tax preparation and planning industry about the proposals and how to resolve some questions that are still unclear.  The IRS wants to receive the comments by September 22, 2018 and has scheduled a public hearing on October 16, 2018.  Taxpayers can rely on the proposed regulations until final regulations are issued.  The regulations won’t be binding until final regulations are issued, except for the anti-abuse rule for multiple trusts, which is effective for taxable years ending after December 22, 2017.

I expect this deduction will be a huge area of litigation from disagreements between the IRS and taxpayers about Congress’s intent in enacting this tax benefit.

My printout of the IRS summary and text of the proposed regulations is 183 pages.  I will only give some highlights here.  I recommend that any individual, trust, partnership, LLC or S corporation with a trade or business (including rental real estate) should have its income tax returns prepared by a professional income tax return preparer for 2018 and be prepared to pay higher income tax return preparation fees than in the past.  I also recommend that business owners should consult with their tax advisors well before the end of the year to find out how the tax law changes in the Tax Cuts and Jobs Act will affect them.

I apologize in advance if my explanation is confusing.  Please get professional advice.  Tax professionals should read the proposed regulations and get more detailed information in training courses and textbooks.

The basics

Effective for tax years beginning after December 31, 2017 and before January 1, 2026, noncorporate taxpayers, including individuals, estates and trusts, are eligible for a federal income tax deduction of 20% of qualified domestic trade or business income.  (For this explanation, I will refer to the deduction as the 20% deduction for business income as shorthand.)  The business income may be from an entity that is a sole proprietorship, a partnership (including most LLCs taxed as partnerships) or an S corporation.  Income from a trade or business that is a specified service trade or business (SSTB) does not qualify for the deduction unless the taxpayer has taxable income of up to $415,000 for taxpayers filing a joint return ($315,000 threshold + $100,000 phaseout) or $207,500 for other taxpayers ($157,500 threshold + $50,000 phaseout.)  The deduction for a trade or business that is not a SSTB may be subject to certain limitations, explained below.

In general, the deduction is limited to the greater of (a) 50% of the W-2 wages of the trade or business; or (b) the sum 25% of the W-2 wages of the trade or business plus 2.5% of the unadjusted basis immediately after acquisition of all qualified property of the trade or business (generally, depreciable property).

The wage and qualified property limitations don’t apply if the taxpayer has taxable income of not more than $157,500, or $315,000 for a joint return.  The limitation is phased in for the next $50,000 of taxable income, or $100,000 for a joint return.

A 20% of business income deduction is also available for a partner’s share of income from a publicly traded partnership and for distributed income from an agricultural or horticultural cooperative or a REIT (real estate investment trust).  This part of the 20% deduction for business income is not subject to the wages and property limitations that apply to other qualified business income.

See below for special rules relating to agricultural and horticultural cooperatives.

The total of the 20% deductions for business income plus the cooperative deduction can’t exceed the taxable income less net capital gains for the tax year.  For the purpose of computing this limitation, the 20% deduction is disregarded.

The 20% deduction for business income is a separate deduction after determining adjusted gross income and before itemized deductions or the standard deduction.

The 20% deduction for business income that is allowed when computing regular taxable income is also allowed for the alternative minimum tax.  No separate computation is required.

Under the proposed regulations, a relevant passthrough entity (RPE) is a partnership, LLC taxed as a partnership or S corporation, S corporation or an estate or trust required to file an income tax return and issue Schedule K-1 to its owners or beneficiaries.  A PTP is a publicly traded partnership.

Domestic trade or business income (Qualified Business Income)

The IRS states in the proposed regulations that it will follow the rules under Internal Revenue Code Section 162 to determine whether the entity is a trade or business.  This provides a resource of past litigation for determining whether or not it is a trade or business.

There is an exception for the rental or licensing of tangible or intangible property to an entity that is commonly controlled (explained below).  If the entity the property is rented or licensed to qualifies as a trade or business, the rental or licensing income will also be trade or business income, even if the entities don’t qualify to be aggregated (also explained below).  It’s not clear that this exception applies if the controlled business that the property is rented or licensed to is a C corporation, since C corporations aren’t eligible for the 20% deduction for business income.

Other than this exception, the proposed regulations do not go into detail about rental real estate income.  There is an example in the proposed regulations where rental real estate income other than to a commonly-controlled entity qualifies for the deduction.  There are court cases where rental from a triple-net lease is considered investment income and not trade or business income.  Some, but not all, rental real estate operations should qualify for the deduction.  I recommend that rental real estate operations that claim the deduction should issue Form 1099 to noncorporate payees to whom payments for services and interest expenses are paid.

The income must be effectively connected with the conduct of a trade or business within the United States.  A determination might have to be made whether income and related deductions have a foreign source and not qualify for the deduction.  A trade or business conducted in Puerto Rico is considered to be conducted within the United States.

Interest income is trade or business income only if it relates to a trade or business.  That would usually be interest income of a bank for business loans or interest received for late payments of accounts receivable.  Interest income for investment of working capital, reserves or similar accounts isn’t related to a trade or business.

Dividends income does not relate to a trade or business.

Short and long-term capital gains are not trade or business income.

W-2 income, compensation for services received other than in the capacity as a partner and guaranteed payments received for services rendered to the trade or business are not trade or business income.  (Profitable partnerships and LLCs taxed as partnerships might want to restructure their compensation for partners from guaranteed payments to special allocations of income.)

Guaranteed payments from a partnership or an LLC taxed as a partnership in lieu of interest for the use of capital are not trade or business income.  (Again, profitable partnerships might want to restructure these arrangements to special allocations of income.)

S corporations that pay dividends to their shareholders and pay them low or no W-2 income will find the IRS is even more aggressive recharacterizing dividends as reasonable compensation, not qualifying for the 20% of business income deduction.  The proposed regulations clarify that the reasonable compensation issue will only apply to S corporations in the context of this deduction.

Ordinary income from the disposition of business assets, such as depreciation recapture, is trade or business income.

Unadjusted basis immediately after acquisition (UBIA) of qualified property

Congress enabled trades and businesses that don’t have significant payrolls to get some benefit from the 20% deduction for business income by incorporating an alternative limitation based on investment in depreciable property.

Qualified property is depreciable property that meets three conditions:

  • It’s held by and available for use in the trade or business at the close of the taxable year;
  • It’s used to produce qualified business income during the taxable year; and
  • The depreciable period for the property hasn’t ended before the close of the taxable year of the individual or the passthrough entity.

Any depreciable addition to or improvement to qualified property is treated as separate qualified property first placed in service on the date the addition or improvement is placed in service.

Property is not qualified property if it is acquired within 60 days of the end of the taxable year and disposed of within 120 days without having been used in the trade or business for at least 45 days before disposition, unless the taxpayer demonstrates that the principal purpose of the acquisition and disposition was a purpose other than increasing the 20% of business income deduction.

Depreciable basis adjustments relating to changes in partnership ownership under Internal Revenue Code Sections 734(b) and 743(b) are not qualified property.

The depreciable period is the period beginning on the date the property was first placed in service by the individual or passthrough entity and ending on the later of (1) the date 10 years after that date, or (2) the last day of the last full year in the Modified ACRS recovery period of the property.  For most personal property, this will be 10 years; for residential real estate, 27.5 years; and for commercial real estate, 39 years.  There is no change in the depreciable period when the taxpayer elects to expense the property or claims bonus depreciation.

This means taxpayers will often have depreciable property still on their books and records that won’t qualify for this limit.

If property is acquired in a Section 1031 tax-deferred exchange or in an involuntary conversion under Internal Revenue Code Section 1033, the depreciable period of the disposed property will continue to apply for the carryover basis portion of the basis, and the depreciable period will start on the replacement date for any additional basis for the replacement property.  There is an exception when the taxpayer makes an election under Treasury Regulations § 1.168(i)-6 to treat the property as first placed in service by the taxpayer on the date the replacement property is placed in service.

Property acquired in a nonrecognition transaction, such as a contribution to a partnership, will continue to have the depreciable period of the contributor.

Inherited property is acquired on the date of death.

The unadjusted tax basis is the cost that would be eligible for depreciation.  The tax basis is determined disregarding basis adjustments for tax credits claimed or for expensing the property under Internal Revenue Code Section 179.  However, any tax basis adjustment for the personal use of the property does apply and that part isn’t included as qualified property for the limitation.

If a passthrough entity doesn’t determine and report the UBIA for each trade or business conducted by the entity, UBIA is presumed to be zero.

W-2 wages

W-2 wages is not necessarily the same as the amount claimed as the deduction for wages on the taxpayer’s federal income tax return.

For example, wages could be capitalized to manufactured property.  Also, the business might report using the accrual method of accounting, but W-2 wages are always reported using the cash method.  A trade or business could have a fiscal year.  The W-2 wages are determined using a calendar year.

W-2 wages for the limitation computation are the wages reported on Form W-2 paid by the person/business during the calendar year ending during the taxable year.  For example, if a trade or business has a taxable year ending June 30, 2019, it would use W-2 wages reported for calendar year 2018.

In determining W-2 wages for the limitation computation, an individual or passthrough entity may include W-2 wages paid by another person/business and reported by the other person/business on Forms W-2 with the other person/business listed as the employer on Box c of Forms W-2 when the W-2 wages were paid to common law employees or officers of the individual or passthrough entity for their employment by the individual or passthrough entity.  In such cases, the individual/business that reported the wages on Form W-2 may not include those wages to compute its limitation.

Each individual or passthrough entity that directly conducts more than one trade or business must allocate those wages among its various trades or businesses, according to the trade or business that generated those wages.  Then the wages must be allocated to the qualified business income of the trade or business.  (This may be more difficult than it sounds, and arguments with the IRS about it are likely.)

A passthrough entity must determine and report W-2 wages for each trade or business conducted by the entity.  If a passthrough entity doesn’t determine and report W-2 wages for each trade or business conducted by the entity, W-2 wages are presumed to be zero.

W-2 wages do not include any amount which is not properly allocable to qualified business income.  For example if a taxpayer reports wages paid to a household employee on Form W-2, those wages are not included for this limitation.

W-2 wages includes the amount reported as wages in Box 1 of Form W-2 for an employee, plus amounts the employee has elected to defer, such as contributions to a 401(k) plan.  These amounts are reported in box 12 of Form W-2.  Elective Roth contributions are already included in taxable wages and are not added.

The IRS has issued a proposed revenue procedure relating to alternative methods for computing W-2 wages.  (Notice 2018-64, August 8, 2018.)  According to the proposed revenue ruling, wages reported on Form W-2 should be reduced by wages that aren’t subject to income tax withholding, including supplemental unemployment compensation benefits.

Forms W-2 provided to statutory employees (the “Statutory Employee” box in Box 13 should be checked) are not included in W-2 wages for the limitation computation.

The wages must be reported on Form W-2 to the Social Security Administration.  W-2 wages don’t include any amounts not properly included in a W-2 Form filed with the SSA on or before the 60th day after the due date, including extensions, for Form W-2.  So, be diligent about filing Forms W-2 and the transmittal Form W-3 on time.  (The due date of Form W-2 is January 31 of the year following the calendar year to which it relates.  Corrected Forms W-2 are due on or before January 31 of the year following the year in which the correction is made.)  Each Form W-2 together with its accompanying Form W-3 will be considered a separate information return and each Form W-2c (corrected W-2) and its accompanying Form W-3c will be considered a separate information return.

If a corrected Form W-2 is filed with the SSA before the 60th day after the original due date (including extensions), the corrected Form W-2 wages are used as W-2 wages for the limitation computation.  According to the proposed regulations, corrected W-2 wages for corrected Forms W-2 filed 60 days or later after the original due date (including extensions) are only used as W-2 wages for the limitation computation if the wages are decreased on a Form W-2c.

The proposed regulations include methods of determining W-2 wages when there is a change of ownership for a business and for short taxable years.  Those rules are beyond the scope of this summary.

Common control

Trade or businesses are under common control if the same person or group of persons, directly or indirectly, owns 50% or more of each trade or business.  For an S corporation, ownership is determined based on the issued and outstanding shares.  For a partnership (including an LLC taxed as a partnership), ownership is determined for the capital or profits of the partnership.  The test applies to the ownership for the majority of the tax year at issue.

When determining control, an individual is considered to own the interest owned, directly or indirectly, by the individual’s spouse (unless legally separated under a decree of divorce or separate maintenance) and the individual’s children, grandchildren, and parents.

Note that common control applies based on the facts even when a taxpayer owns a minority interest in a trade or business.   For example, that individual might own a minority interest in a trade or business and also in a rental property leased to the trade or business.  If the trade or business and the rental property are 50% or more owned by the same individuals, minority owners still treat them as under common control and can treat the rental income as trade or business income under the safe harbor.

Specified service trades or businesses (SSTB)

Specified service trades or businesses are involved in performing services in one or more of the following fields: health (care), law, accounting, actuarial science, performing arts, consulting, athletics, financial services, brokerage services, investing and investment management, (securities) brokerage services, (securities and commodities) trading, dealing in securities, or any trade or business where the principal asset of such trade or business is the reputation or skill of one or more of its employees or owners.

The proposed regulations elaborate on the fields and state that it is the nature of the work done and not licensure that determines whether a trade or business is a SSTB.  For example, an unlicensed bookkeeping service is considered an accounting business so it is a SSTB.

Businesses involved in the research, testing and manufacture of pharmaceuticals or medical devices are not considered “health” businesses, and neither are health clubs/gymnasiums.

Banks are not considered financial services businesses.

Consulting means the provision of professional advice and counsel to clients to assist the client in achieving goals and solving problems.  Consulting provided incidental to selling products or software at no additional fee for the service is not “counted” as consulting services.

The biggest concern of the tax planning and preparation of the community is the last field.  Almost any businesses could be considered have as its principal asset the reputation or skill of its employees or owners.  The IRS laid this concern to rest by only including the following types of trades and businesses:

  • A trade or business in which a person receives fees, compensation, or other income for endorsing products or services,
  • A trade or business in which a person licenses or receives fees, compensation or other income for the use of an individual’s image, likeness, name, signature, voice, trademark, or any other symbols associated with the individual’s identity, or
  • Receiving fees, compensation, or other income for appearing at an event or on radio, television or another media format.

The term fees, compensation or other income includes the receipt of a partnership interest or S corporation stock with their corresponding distributive shares of income, deduction, gain or loss.

For a trade or business with gross receipts of $25 million or less for a taxable year, a trade or business is not a SSTB if less than 10% of the gross receipts of the trade or business are attributable to the performance of services in a specified field.

For a trade or business with gross receipts of more than $25 million, the threshold is 5% of gross receipts.

Any trade or business that provides 80% or more of its property or services to a SSTB and there is 50% or more common ownership, directly or indirectly, in the trades or businesses, will be treated as a SSTB.

If a trade or business provides less than 80% of its property or services to a SSTB and there is 50% or more common ownership, directly or indirectly, in the trades or businesses, that portion of the trade or business of providing property or services to the commonly-owned SSTB is treated as part of the SSTB.

For this purpose, indirect common ownership is determined under Internal Revenue Code Sections 267(b) and 707(b).

If a trade or business that otherwise would not be treated as a SSTB has 50% or more common ownership, directly or indirectly, with a SSTB, and has shared expenses with the SSTB, then that trade or business will be treated as incidental to and part of the SSTB if the gross receipts of the trade or business represents no more than 5% of the combined gross receipts of the trade or business and the SSTB in a taxable year.

Trade or business of performing services as an employee

Income of a trade or business performing services as an employee doesn’t qualify for the 20% deduction for business income.

The determination of whether a trade or business is performing services as an employee is not solely determined based on whether the individual performing the services is treated as an employee for federal employment tax purposes.

For this purpose, an individual who was properly treated as an employee for Federal employment tax purposes by the person or business to who he or she provided services and who subsequently is treated as other than an employee by such person for providing substantially the same services to that person/business or a related person/business, is presumed to be in the trade or business of performing services as an employee with regard to those services.  The presumption also applies if the individual provides services directly or indirectly through an entity or entities.

The presumption may be rebutted if the individual shows that, under Federal tax law, regulations and principles, including common-law employee classification rules, the individual is performing services in a capacity other than as an employee.

Aggregation

Electing to aggregate different trades and businesses and treat them as one for computing the 20% deduction is one of the most important elections for the 20% deduction for business income.

For example, business A has taxable income of zero, W-2 wages of $100,000 and no depreciable assets.  Business B has taxable income of $100,000, no W-2 wages and no depreciable assets.  If these businesses are reported separately, there is no 20% deduction for their operations.  If they are aggregated, the 20% deduction before the overall taxable income limitation would be $20,000, which is the lesser of 20% of $100,000 (income) = $20,000 or 50% of $100,000 (W-2 wages) = $50,000.

Aggregation is not required.  Different taxpayers that own the same trades and businesses can make different aggregation elections; some might choose not aggregate while others will choose to aggregate.

Taxpayers that elect to aggregate two or more trades or businesses must continue to do so in future taxable years, unless one or more of the businesses becomes ineligible, such as when there no longer is common control.

Taxpayers may elect to aggregate a new trade or business with a previously existing group.

This election is separate from the passive activity loss grouping rules.  Qualification as a real estate professional and electing to combine all real estate activities has no effect for aggregation under these rules.

A trade or business that is a specified service trade or business (SSTB) can’t be aggregated with another trade or business.

In order to otherwise qualify for aggregation, the trades or businesses must be commonly controlled (see above explanation) and satisfy at least two of the following factors:

  • The trades or businesses provide products and services that are the same or customarily offered together.
  • The trades or businesses share facilities or share significant centralized business elements, such as personnel, accounting, legal, manufacturing, purchasing, human resources, or information technology resources.
  • The trades or businesses are operated in coordination with, or reliance upon, one or more of the businesses in the aggregated group (such as supply chain interdependencies).

For each taxable year, individuals must attach a statement to their federal income tax returns identifying each trade or business that is aggregated. The statement must include:

  • A description of each trade or business;
  • The name and employer identification number for each entity in which a trade or business is operated;
  • Information identifying any trade or business that was formed, ceased operations, was acquired, or was disposed of during the taxable year; and
  • Such other information that the IRS requires in forms, instructions or published guidance.

If the individual fails to attach the required statement, the IRS may disaggregate the individual’s trades or businesses.

Pass-through entity reporting

Passthrough entities, including partnerships, LLCs taxed as partnerships, S corporations, estates and trusts, must report to their owners and beneficiaries the information required for the owners and beneficiaries to compute their 20% deduction for business income.  The information will be included on Schedule K-1 or a statement attached to Schedule K-1 that is issued to its owners or beneficiaries.

That information will include, for any trade or business engaged in directly by the entity:

  • Each owner’s allocable share of qualified business income (QBI), W-2 wages, and unadjusted basis immediately after acquisition (UBIA) of qualified property; and
  • Whether any of the trades or businesses is a specified service trade or business (SSTB.)

The entity must also report on an attachment to Schedule K-1 the QBI, W-2 wages, UBIA and SSTB determinations for any other passthrough entity in which the reporting passthrough entity owns a direct or indirect interest.

This information must be reported despite aggregation by the owners of the passthrough entities, because the aggregation election is made by the individual owner.

If the required information isn’t reported by the passthrough entity, the owner’s share of the QBI, W-2 wages and UBIA of qualified property will be presumed to be zero.

Trusts and estates will allocate the reportable items to the trust or estate and the beneficiaries of the trust or estate in proportion of the allocation of the trust’s or estate’s distributable net income.  If the trust or estate makes no distributions and none of its income is required to be distributed, all of the reportable items will be allocated to the trust or estate.  If the trust or estate has no distributable net income, all of the reportable items will be allocated to the trust or estate.

Losses

Trade or business losses for computing the 20% of business income deduction will be separately accounted for.  Losses that are tax deductible for computing taxable income might not be deductible when computing the 20% of business income deduction.

Regular tax net operating losses are not allowed when computing qualified business income for the 20% of business income deduction.

Losses or deductions that were disallowed, suspended, limited or carried over from taxable years ending before January 1, 2018 will be disallowed when computing qualified business income for the 20% of business income deduction.

Previously disallowed losses or deductions from taxable years ending after December 31, 2017 under the passive activity loss rules, at risk rules or from insufficient basis that are subsequently allowed when computing taxable income will be taken into account when computing qualified business income for the 20% of business income deduction.

Passthrough entities report the income or loss for each trade or business that they conduct to the owners of the entity.  The loss limitations are applied at the level of the individual owner, estate or trust.

When any trade or business has a loss for a taxable year, that loss is allocated pro-rata according to the taxable income before the loss of any other trades or businesses of the taxpayer who is the owner or beneficiary computing taxable income.  The net income amount will be considered to be zero.  The W-2 wages and UBIA limitations for that trade or business are disregarded.  The W-2 wages and UBIA limitations only apply for trades or businesses with positive taxable income after reduction from the losses of any trades or business that have losses.

If the total of the taxable income for the trades or businesses of the taxpayer is a loss, that loss is disallowed for the taxable year and the 20% of business income deduction is zero.  The loss is carried forward to the next taxable year and is considered to be the loss of a separate trade or business when making the 20% of business income deduction computation.

For example, Jane Taxpayer has three trades or businesses to report on her 2018 income tax returns, A, B and C.  None of these businesses have depreciable property since Jane leases the equipment.  For 2018, A has $25,000 of taxable income, B has $75,000 of taxable income, and C has a taxable loss of ($50,000).  The W-2 wages for 2018 are $25,000 for A, $20,000 for B and $10,000 for C.  To compute the 20% of business income deduction, C’s taxable loss is allocated 25% to A, or ($12,500) and 75% to B, or ($37,500).  After subtracting the allocated losses, the 20% deduction for A’s income is $12,500 X 20%, or $2,500, limited to 50% of A’s W-2 wages, $12,500, or $2,500.  The 20% deduction for B’s income is $37,500 X 20%, or $7,500, limited to 50% of B’s W-2 wages, $10,000, or $7,500.  The W-2 wages for C are disregarded for this computation.

If the taxable loss for C in the previous example was ($120,000), the total loss for all of the trades or businesses would be ($20,000).  There would be no 20% deduction for business income for 2018 and the $20,000 loss would be carried over to 2019, and would be treated as a loss from a separate trade or business other than A, B or C.

When computing the 20% of business income deduction for REIT dividends and qualified publicly traded partnership income, any losses from publicly traded partnerships are combined with the income of other publicly traded partnerships and REIT dividends.  The deduction is 20% of any positive total.  If the total is a loss, the 20% deduction for REIT dividends and qualified publicly traded partnership income is zero.  The loss is carried forward to combine with REIT dividends and qualified publicly traded partnership income for the next taxable year.

Multiple trusts

Since each trust has its own threshold for applying the W-2 wages and UBIA limitations and for the phaseout of the deduction relating to SSTB income, there is a potential for abuse by individuals creating multiple trusts to hold ownership interests in family trades and businesses.

There is an anti-abuse provision in Internal Revenue Code Section 643 which aggregates two or more trusts and treats them as a single trust if such trusts have substantially the same grantor or grantors and substantially the same primary beneficiary or beneficiaries, and if a principal purpose for establishing such trusts is the avoidance of Federal income tax.  When applying this rule, spouses are treated as one person.

Under the proposed regulations, it is presumed that multiple trusts with the same grantor or grantors and substantially the same primary beneficiary or beneficiaries that hold trade or business interests are established to avoid Federal income tax.  Therefore, the trusts will be aggregated and treated as a single trust, unless there is a significant non-tax (or non-income tax) purpose that could not have been achieved without the creation of these separate trusts.

Agricultural or horticultural cooperatives

Special rules apply for income from an agricultural or horticultural cooperative.

The 20% of business income deduction attributable to income from an agricultural or horticultural cooperative is reduced by the lesser of:

  • 9% of the QBI with respect to the trade or business as is properly allocble to qualified payments received from the cooperative;
  • 50% of the W-2 wages with respect to the trade or business allocable to the income, determined under Prop. Reg. 1.199A-2.

In addition to the reduced 20% of business income deduction (net 11%), an agricultural or horticultural cooperative can take an additional tax deduction of 9% of the lesser of (1) the qualified production activities income (QPAI) of the taxpayer for the taxable year, or (2) the taxable income of the taxpayer for the taxable year.  The deduction is limited to 50% of the W-2 wages of the taxpayer for the taxable year.  The deduction is computed without regard to the deductions for patronage dividends, per-unit retain allocations and nonpartronage distributions.

A pro-rata portion of the deduction for the cooperative is passed through to the owners who receive a qualified payment from the cooperative.  The amount will be identified by the cooperative in a written notice.  This is similar to the procedure for the old DPAD deduction.

The pass-through deduction from the cooperative to the owner is subject to the taxable income limitation.

The cooperative won’t be able to deduct any qualified payment up to the deduction allowable with respect to the payment.

When you add these two amounts together, you’re back to 20% of deductions attributable to the cooperative income.

(The IRS said in the explanation for the proposed regulations that it plans to issue separate proposed regulations for cooperatives later this year.  The IRS expects those proposed regulations will provide that only the patronage business of a relevant cooperative will qualify for the deduction for business income.)

Conclusion

After reading this report, I hope you will appreciate the complexity of this new deduction.  This is not a simple matter for reporting using consumer tax return preparation software.  Making errors in choices for elections and failure to report correctly can result in a smaller deduction or in losing the deduction altogether.  You have to get the right figures in the right boxes.  There are penalties from overstating the deduction that I haven’t discussed here.

Tax practitioners should study the details for computing the deduction seriously and business owners should seek professional help when planning for and reporting the deduction.

Equity compensation isn’t subject to Railroad Retirement Tax

The U.S. Supreme Court resolved a conflict of interpretation about whether employee stock options are subject to Railroad Retirement Tax.

The Court ruled that equity compensation isn’t subject to the Railroad Retirement Tax.

The retirement system for the railroad industry was nationalized by the Railroad Retirement Act of 1937.  Railroad employers pay taxes on employee compensation, somewhat like the social security system.

Under the Railroad Retirement Act, the tax applies to “any form of money remuneration.”

The IRS claimed that stock options should be considered to be “money remuneration.”

The Supreme Court said that money is understood to be currency issued by a recognized authority as a medium of exchange.  While stock can be bought or sold for money, it isn’t usually considered to be a medium of exchange.

 

Supreme Court changes the game for sales tax on interstate sales

For many years, companies that sold their goods in states where they had no physical presence (no assets or employees located in the state) haven’t collected sales tax.  They relied on U.S. Supreme Court rulings in National Bellas Hess (1967) and Quill Corp. (1992) that they weren’t obligated to collect the tax.

With the explosion of the internet and world wide web, a growing share of U.S. commerce is now conducted online.  The states have suffered declining sales tax revenue and “bricks and mortar” merchants have suffered a disadvantage from having to collect sales tax while online merchants don’t have to.

The Supreme Court, at the request of 41 states, two territories and the District of Columbia, reversed the National Bellas Hess and Quill decisions on June 21, 2018.  The Court basically said that making a sale creates sufficient nexus to be required to collect sales tax.

This decision will have a significant impact on businesses that make interstate sales.  They now need to determine the sales tax for a huge number of jurisdictions in the U.S.  Counties and cities have their own sales tax rates.  Businesses might be required to file hundreds of sales tax reports.

Some states have thresholds to eliminate the burden for smaller businesses.  For example, in South Dakota, only sellers that deliver more than $100,000 of goods or services into the state or engage in 200 or more separate transactions for the delivery of goods or services into the state are required to collect sales tax.

Hopefully Congress will develop legislation to ease the burden for collecting, reporting and paying state and local sales taxes.

 

What meals, entertainment and business gifts are 100% deductible?

The deductibility for meals, entertainment and business gifts is a complex area of the federal tax laws that is worth studying.  I am going to highlight some areas where these items are 100% deductible to stimulate further conversation with your tax advisor.  This is not a complete explanation that you can rely on as authority for a tax position.

These rules were radically changed by the Tax Cuts and Jobs Act of 2017, effective for amounts paid or incurred after December 31, 2017 until December 31, 2025.  The tax deduction for entertainment expenses has been repealed.  These expenses include any item relating to (1) an activity generally considered to be entertainment, pleasure, recreation, (2) membership dues with respect to any club organized for business, pleasure or other social purposes, or (3) a facility or any portion thereof used in connection with any of the above items.

Under the Act, no deduction will be allowed for expenses associated with providing any qualified transportation fringe to employees of the taxpayer, except as necessary for ensuring the safety of an employee, any expense incurred for providing transportation (or any payment or reimbursement) for commuting between the employee’s residence and place of employment.

The basic rule is that certain business meals are 50% deductible.  Business gifts are deductible up to $25 to a person (spouses are counted as one person) per year.

Under the Act, food and beverages provided on the business premises of the employer for the convenience of the employer as a de minimus fringe benefit are only 50% tax deductible.   Such amounts incurred and paid after December 31, 2025 will not be tax deductible.  The “cafeteria exception” has been repealed.

Under the Act, recreational or social expenses (including facilities expenses) primarily for the benefit of employees other than certain owners and highly compensated employees, such as company picnics and holiday parties, are still tax deductible.  Meals relating to these activities are still 100% deductible.

There are important exceptions that should be separately accounted for on a business’s books and records.

For example,

When a taxpayer is in the business of providing meals and entertainment to customers, such as amusement parks, restaurants and nightclubs, the expenses of providing those goods and services are 100% tax deductible.  This is a form of providing “samples” as a promotional expense

An important exception that I want to focus on is expenses for goods, services and facilities made available by the taxpayer to the general public.  This article was inspired by private IRS letter ruling 9641005, which explains how the limitations apply for a casino.  IRS private letter rulings can’t be relied on as authority for tax positions, but indicate the thinking of the IRS for this situation.

In that ruling, the term “general public” is very broadly interpreted to include a customer or group of customers.  (It may be that casinos as a group have enough political “pull” to get a generous interpretation by the IRS.)

Most of the gaming operations, shows, and restaurant facilities in the casino are providing meals, entertainment and lodging to the general public, and so the expenses of providing them are tax deductible as cost of goods and services sold.

Casinos provide a number of gifts to customers intended to stimulate additional business, called “comps.”

When a casino provides food, drinks and show tickets on its premises as comps to guests who are gambling or lodging on the premises, they are providing tax deductible “samples” to the public, which are 100% tax deductible.  (The same rule applies to restaurants providing complementary meals to customers or reviewers, as I described above.)

Some promotional gifts given to customers may be fully tax deductible.  An example from the Congressional Committee report is cited that if the owner of a hardware store advertises that tickets to a baseball game will be provided to the first 50 people who visit the store on a particular date, or who purchase an item from the store during a sale (gift with purchase), the total cost of the tickets is tax deductible as a business promotion expense.  Casinos commonly give coupon books to their guests and may deduct 100% of the expenses for the coupon items.

Items, such as promotional pens, that cost up to $4.00 with the taxpayer’s name imprinted for which multiple identical items are given are not considered to be business gifts, but simply fully tax-deductible promotional items.

Dinner meetings for groups of customers or prospective customers relating to a business presentation, as we commonly see for financial planners, are 100% tax deductible “public events.”  (Time will tell if the IRS changes its position in light of the Tax Cuts and Jobs Act of 2017.  I believe this exception still applies.)

Things become more involved for comps provided by casinos for activities off their business premises.

For example, sporting event tickets (unless relating to a business promotion) are only deductible for their face value, and under the Act only deductible as gifts subject to the $25 annual limit per customer.

Meals or other entertainment provided off the premises might be 50% deductible if a representative of the casino accompanies the customer for a business deduction.  Otherwise, reimbursements provided to the customer or direct payment by the casino aren’t tax deductible.

Some business expenses that would otherwise be entertainment are classified differently in certain situations.  For example, professional theater critics may fully deduct theater tickets for shows they review, and fashion shows by clothing manufacturers are fully deductible promotional events.

Note the $25 and $4 limitations above are very old, going back to 1954.  This is a good time to write your representatives in Congress that these limitations should be increased or eliminated.

Now is a great time to review your accounting procedures with your tax advisor to assure you are maximizing your tax deductions.  Your business should also segregate entertainment expenses from business meals on its books and records.  If you need assistance in that effort, please call Thi Nguyen, CPA at 408-286-7400, extension 206.

Tax and financial advice from the Silicon Valley expert.