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Tax tips and developments relating to individuals

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 (H.R. 748)  on March 28, 2020.  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.

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.

It appears claiming the recharacterization of the distribution for any repayments will be reported on an amended 2020 income tax return.

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.

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.

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.

The maximum loan amount is $10 million thorugh 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, paid sick or medical leave, insurance premiums and mortgage, rent, and utility payments.

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 particpaing 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.

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

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, 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 the Notice. https://www.irs.gov/pub/irs-drop/n-20-18.pdf

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

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.

IRS proposed regulations will keep more in retirement accounts

The IRS has issued proposed regulations relating to required minimum distributions from retirement accounts, including, 401(k), IRA and Roth IRA accounts.  (Proposed Regulations REG-132210-18, Proposed Regulations Section 1.401(a)(9)-9.)

The required minimum distribution is generally computed using a life expectancy table issued by the IRS, called the lifetime distribution table.  The life expectancy tables haven’t been updated for many years.  The proposed regulations include new life expectancy tables.

(If a taxpayer fails to take a required minimum distribution, the federal penalty is 50% of the undistributed amount.)

Since life expectancies have been increasing, required minimum distributions will be smaller using the proposed tables, potentially leaving larger balances to accumulate future earnings.  Bigger distributions can optionally be taken at the risk of exhausting the account before the employee or plan owner’s death.

The proposed regulations are proposed to be effective for retirement plan distributions for tax years beginning on or after January 1, 2021, provided they are adopted as final regulations by that date.

Required minimum distributions for a non-spouse beneficiary of a deceased employee or a deceased plan owner are based on the life expectancy determined using the Single Life Table of the beneficiary as of the date of death of the employee or plan owner, minus one for each subsequent year.  Under the proposed regulations, the beneficiary will be able to recompute his or her life expectancy as of the date of death of the employee or deceased plan owner using the new lifetime distribution table starting January 1, 2021.

 

IRS gives more guidance for virtual currency transactions

The IRS is very concerned that taxpayers aren’t properly reporting their transactions for Bitcoin and other virtual currencies.  Previously, guidance was issued in Notice 2014-21.  Now it has released additional guidance about this subject.

In Revenue Ruling 2019-24, the IRS discusses “hard forks”.  A hard fork is like a spinoff for a stock.  New cryptocurrency is created on a new distributed ledger.  According to the Revenue Ruling, if the new currency is “airdropped” to a distributed ledger address owned by the taxpayer, it is an accession to wealth that is taxable as ordinary income equal to the fair market value of the currency received.  If the new ledger isn’t owned by the owner of the base currency, no taxable income results for that individual.

The IRS has also issued additional Frequently Asked Questions about virtual currency at its website.  Here is a link to the FAQ.  https://www.irs.gov/individuals/international-taxpayers/frequently-asked-questions-on-virtual-currency-transactions

One of the FAQ items relates to virtual currency received in exchange for performing services.  The answer provided is that virtual currency received in exchange for performing services is taxable as ordinary compensation income, based on the fair market value of the currency received.

Another FAQ makes it clear that virtual currency transactions can be reported using the specific identification method.  The taxpayer must specifically identify the batch of units sold and when they were acquired.  A unit of virtual currency can be identified by documenting the specific unit’s unique digital identifier such as a private key, public key, and address or by records showing the transaction information for all units of a specific virtual currency, such as Bitcoin, held in a single account, wallet or address.  The information must show.

1. The date and time each unit was acquired,

2. The taxpayer’s basis and the fair market value of each unit at the time it was acquired,

3. The date and time each unit was sold, exchanged, or otherwise disposed of, and

4. The fair market value of each unit when sold, exchanged or disposed of, and the amount of money or the value of property received for each unit.

Taxpayers who don’t specifically identify units of virtual currency that are sold, exchanged or otherwise disposed of are deemed to have sold the units on a first-in, first-out basis.

Transactions other than ordinary income transactions should be reported on Schedule D and Form 8949.

I recommend that taxpayers who participate in virtual currency transactions should get professional help when preparing their income tax returns.

How to make a retroactive small business accounting election for California

The Franchise Tax Board has released preliminary guidance about how to make a small business accounting election on a 2018 income tax return.  California recently passed legislation, the “Loophole Closure and Small Business and Working Families Tax Relief Act of 2019”, adopting some of the provisions of the federal Tax Cuts and Jobs Act of 2017, including elections for certain small businesses that were previously required to use the accrual method of accounting to use the cash method and other accounting simplification measures.  The effective date for these accounting changes is for years beginning on or after January 1, 2019, but taxpayers may elect to apply the changes for years beginning on or after January 1, 2018.

Until formal procedures are issued, taxpayers may make the election by providing the following information to the Franchise Tax Board:

  1. A statement with the original or amended California income tax return stating the taxpayer’s intent to make a small business accounting election and which election(s) the taxpayer is making;
  2. On the top of the first page of the original or amended tax return, write “AB 91 – Small Business Accounting Election” in BLUE INK; and
  3. Mail the return to:

Franchise Tax Board

PO Box 942857

Sacramento, CA  94257-0500

Note:  These returns must be PAPER-FILED.

(Spidell’s Flash E-mail: How to make a retroactive small business accounting election, July 31, 2019.)

Heterosexual couples under age 62 can now be registered domestic partners in California

Governor Newsom approved Senate Bill No. 30 on July 30, 2019.  The bill was authored by Senator Scott Weiner (Democrat state senator from San Francisco).  Under the new law, California’s Family Code is amended to allow heterosexual couples (a man and a woman) under age 62 to be registered domestic partners.

Before the change, only same-sex couples and heterosexual couples age 62 and greater could be registered domestic partners in California.

This change is important because registered domestic partners have essentially the same legal rights as married couples in California (including community property rights), and the relationship is not recognized as being married by the federal government.  THEREFORE, HETEROSEXUAL COUPLES WHO ARE CALIFORNIA REGISTERED DOMESTIC PARTNERS CAN AVOID THE FEDERAL INCOME TAX MARRIAGE PENALTY.

The federal marriage penalty means that a couple that files their income tax returns as married persons generally pays more income taxes than they would as unmarried persons.  The federal marriage penalty was increased under the Trump tax legislation, the Tax Cuts and Jobs Act of 2017.

Registered domestic partners are treated the same as married persons for California income tax reporting.

Be aware that registered domestic partners don’t qualify for some federal tax benefits that married couples do qualify for.  For example, gifts to a spouse who is a U.S. citizen qualifies for an unlimited marital deduction.  A bequest to a spouse who is a U.S. citizen also qualifies for an unlimited marital deduction.  The executor of a deceased spouse can elect on an estate tax return to give any unused lifetime exemption of the deceased spouse to a surviving spouse.  Only married persons are allowed to treat property settlements incident to a divorce as tax-free.

Heterosexual couples who are California residents and are planning to be married should consider being registered domestic partners, instead.

Heterosexual married couples who are California residents and who are paying a substantial federal marriage penalty should consider terminating their marriages and becoming registered domestic partners.  (Consult with your tax advisor to find out if you actually have a marriage penalty.)

I recommend consulting with a lawyer that specializes in family law and estate planning before making your decision.

(California S.B. 30, July 30, 2019.)

IRS issues more proposed regulations for Qualified Opportunity Funds

A great tax benefit enacted as part of the Tax Cuts and Jobs Act of 2017 is the Qualified Opportunity Fund (QOF).

Taxpayers who reinvest capital gains into one of these funds can defer federal income taxes on the reinvested capital gains, including Section 1231 gains from selling business assets that are taxable as capital gains, for up to eight years until the earlier of the date on which the qualified investment is sold or exchanged or December 31, 2026.  In addition, the additional gain relating to the appreciation of the Qualified Opportunity Fund may be tax free, provided an election is made and the investment is held for more than 10 years.

If the QOF is held at least 5 years, 10% of the reinvested deferred gain will be tax free.  If the QOF is held at least 7 years, an additional 5% of the reinvested deferred gain will be tax free.  These adjustments are accounted for as tax basis adjustments — adding the tax free amounts to the taxpayer’s cost of the investment in the QOF.

The IRS issued proposed regulations for these funds during October, 2018.  Now they have issued additional proposed regulations (REG-120186-18 to be published shortly in the Federal Register) and are asking for more feedback from the tax return preparation and consulting community.   Another public hearing is scheduled for July 9, 2019 at 10 a.m.

The new proposed regulations provide answers to many questions relating to Qualified Opportunity Funds, and are mostly favorable to taxpayers.  I can only cover a few highlights.  My printout of the regulations and preamble is about 168 pages.  Here are a few key points.

  1.  The ownership and operation (including leasing) of real estate is the active conduct of a trade or business.  A triple-net lease is not the active conduct of a trade or business.  This broad acceptance of real estate leases as a trade or business only applies for applying the rules for Qualified Opportunity Funds.

2.  Only net capital gains and net Section 1231 gains (from sales of business assets) that are taxed as capital gains qualify for deferral by reinvestment.  Since net Section 1231 losses are taxed as ordinary losses, the 180-day reinvestment period for net Section 1231 gains begins at the end of the taxable year when the sale of Section 1231 property was closed.

3.  If there is an “inclusion event”, any remaining reinvested deferred capital gains and Section 1231 gains will become taxable if the investment hasn’t already been held until December 31. 2026.

4.  If an S corporation that invests in a QOF has aggregate change of ownership of capital interests of more than 25%, there is an inclusion event.

5.  A conversion of an S corporation to a partnership or disregarded entity or a C corporation is an inclusion event.

6.  A taxpayer’s transfer of a qualifying investment by gift, whether outright or in trust, is an inclusion event.

7.  A taxpayer’s transfer of a qualifying investment to a revocable living trust (grantor trust) is not an inclusion event, because the trust is disregarded for income tax reporting and the taxpayer is considered to continue to own the investment.  The trust becoming irrevocable can be an inclusion event, but see item 8.

8.  The transfer of a qualifying investment to a beneficiary of an estate or trust as an inheritance is not an inclusion event.  Remaining reinvested deferred income is potentially income with respect of a decedent.  The beneficiary steps into the shoes of the decedent relating to when the income will be taxable.

9.  A corporate subsidiary that is a QOF is not eligible to be included in a consolidated income tax return.

10.  A corporate parent that is a QOF is eligible to be included in a consolidate income tax return.

11.  A taxpayer may invest amounts exceeding capital gains and Section 1231 gains that are eligible for deferral in a QOF.  The excess investment will be separately accounted for as a separate interest that is not eligible for QOF tax benefits.  (Any gain relating to that share will be taxable.)

12.  Distributions by QOFs can be inclusion events.  For example, if a QOF partnership or S corporation borrows money and distributes funds exceeding their tax basis to its partners (remember most QOF interests will start with a basis of zero, because there is no tax basis for the deferred gains that are reinvested in the fund), the distributions will be an inclusion event.  (Distributions of operating income should be handled carefully.  Remember you can have positive cash flow when you don’t have taxable income because of noncash deductions, like depreciation.)

13.  Special rules are provided for mergers, recapitalizations and reorganizations.  They are beyond the scope of this summary.  See your tax advisor.

14.  Used property leased tangible property that was previously not used for a depreciable purpose for at least five years can be eligible “original use” QEF property.

15.  The proposed regulations include fairly liberal “substantially all” definitions for various limitations.  They are beyond the scope of this summary.  See your tax advisor.

16.  Leases shouldn’t include prepayments for more than a year.

17.  The proposed regulations include valuation guidelines for tangible property when applying the test requiring 90% of the property of the QOF to be used in the Qualified Opportunity Zone.  The QOF may either use the value for a qualified (audited) financial statement or cost and present value of lease payments as of the inception of the lease.  The property doesn’t have to be revalued each year.

18.  QOFs are required to annually pass a 50% of gross receipts test.  A least 50% of the QOF’s gross income must be earned in a Qualified Opportunity Zone.  Under the regulations, the gross receipts aren’t tested based on where the customer is located, but on where the work is done to produce the products or services.  That means sales from reselling products produced overseas won’t be qualified income.  Just having a post office box located in a Qualified Opportunity Zone doesn’t mean the business is considered to be located there.

19.  Unimproved land won’t be considered qualifying property unless plans are in place to substantially improve the land within 30 months.

The IRS says they will be issuing more proposed regulations for QOFs soon.

These proposed regulations are critically important for taxpayers to realize the tax benefits that they are counting on when making investments in QOFs.

IRS issues final regulations for the 20% of qualified domestic business income deduction

The 20% of qualified domestic business income (QDBI or called QBI in the regulations) deduction 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.

Even professional tax return preparers will be challenged when computing the deduction for higher-income taxpayers.  Any taxpayer who owns an unincorporated business or an S corporation should get professional help for preparing their 2018 income tax returns.

The IRS issued final regulations on January 18, 2019, and a corrected version of the final regulations on February 1, 2019.  The final regulations were published in the Federal Register on February 8, 2019, after a delay because of the federal shutdown.  The IRS incorporated many of the suggestions that they received in response to proposed regulations that were issued on August 8, 2018, so the final regulations are “new and improved.”

The deduction is effective for taxable years beginning after December 31, 2017.  For 2018, taxpayers may elect to use the final regulations in their entirety, the proposed regulations in their entirety, or to only follow the Internal Revenue Code.  No cherry-picking!  In most cases, taxpayers should follow the final regulations, so they can use benefits like aggregation of businesses.

My printed copy of the final regulations, including the preamble, is 249 pages.  I can only cover some highlights here.  Professional tax return preparers should study the final regulations and attend the continuing education updates that are widely available.

The computation of the deduction is much simpler and more favorable for taxpayers below the income thresholds.  The deduction is computed for individuals and for the undistributed income of trusts and estates.

The basics.  The basic computation is 20% of qualified domestic business income.  The total deduction under Section 199A is 20% of qualified domestic business income + 20% of qualified REIT dividends + 20% of qualified income from a publicly traded partnership + 9% of qualified production activity income from an agricultural cooperative.  The total deduction is limited to 20% of taxable income in excess of net capital gain (including qualified dividends.)

If a taxpayer’s taxable income exceeds a threshold amount, things become more complicated.

The threshold amounts for 2018 are $315,000 for married, filing joint returns and $157,500 for other taxpayers.  The threshold limitations are phased in from $315,000 to $415,000 for married, filing joint returns and $157,500 to $207,500 for other taxpayers.  The threshold amounts will be indexed for inflation after 2018.

Once the thresholds are reached, the income of specified service trade and businesses (SSTBs) will be phased out and eliminated for the computation of the deduction.

In addition for taxpayers over the thresholds, for income other than from qualified REIT dividends, publicly-traded partnerships or agricultural cooperatives, the deduction will be limited to the greater of (1) 50% of W-2 wages paid, or (2) 25% of W-2 wages + 2.5% of unadjusted basis immediately after acquisition (UBIA.)  The limitation is applied for each trade or business or aggregated trades or businesses.

The 20% deduction for QDBI is the same amount for the alternative minimum tax as for the regular tax.

Qualified domestic business income (QDBI, or called QBI in the regulations).  Qualified domestic business income means the net amount of qualified items of income, gain, deduction and loss with respect to any trade or business (or aggregated trade or business) as determined under the rules for Internal Revenue Code Section 199A.  Only income for business conducted in the United States (including Puerto Rico) qualifies for the deduction.  The trade or business must be conducted as a passthrough entity, including sole proprietorships, partnerships, S corporations, and LLCs taxed as sole proprietorships, partnerships or S corporations.

The income of S corporations must be reduced by reasonable compensation paid to shareholders.  If an S corporation doesn’t pay reasonable compensation, the IRS can reclassify part of the income as wages.  This rule doesn’t apply to partnerships or LLCs taxed as partnerships, because partnerships don’t have a reasonable compensation requirement as corporations do.

Any income taxed as capital gains, including some net gains from the sale of business assets called net Section 1231 gains, are excluded from QDBI.  Other investment income such as most interest income and qualified dividends income are also excluded from QDBI.

Interest income that is business income, such as the income of banks from making loans or late charges for accounts receivable, is included in QDBI.

Ordinary income or losses relating to the sale of business assets, including depreciation recapture and net Section 1231 losses, are included in QDBI.

Income from the trade or business of being an employee is excluded from QDBI.

Guaranteed payments to partners are also excluded from QDBI because they are considered similar to wage and interest income.

QDBI is reduced for deductions relating to the income, including the deduction for self-employment taxes, self-employed retirement contributions and the self-employed medical insurance deductions for adjusted gross income.

A controversial matter is whether net rental income from a real estate operation qualifies as a trade or business.  The IRS has separately issued Notice 2019-07, a proposed revenue procedure for a safe harbor for real estate operations to qualify as trades or businesses qualifying for the deduction.  I have written a separate blog post about Notice 2019-07.  http://www.michaelgraycpa.com/posts/irs-issues-safe-harbor-for-rental-real-estate-qualification-for-20-qualified-business-income-deduction/

Loss considerations.  The final regulations make it clear that loss limitation rules, such as the passive activity loss rules, at-risk rules and losses limited by basis, are applied before the rules to compute the 20% QDBI deduction.  Any loss carryovers from taxable years beginning before January 1, 2018 are disregarded when making the 20% QDBI computations.  According to other proposed regulations, REG-134652-18, any future carryovers of those losses are treated as coming from a separate trade or business and are not aggregated with the current-year income of the entity that generated the loss.

Grouping under the passive activity loss rules and the election to be a real estate professional are disregarded for the 20% of QDBI deduction computations.

The negative qualified business income of any entity is allocated and applied to the positive qualified business income of any other entities.  Any losses in excess of the total positive business income of the other entities is disregarded and carried forward to the next taxable year.  The total loss carryforward will be considered to come from a separate entity in the subsequent taxable year.

The loss limitation is applied separately for publicly traded partnerships and any excess loss is carried forward separately as a loss from a publicly traded partnership.

Passthrough entities (RPEs).  The income from a relevant passthrough entity (RPE) (partnership, S corporation, estate or trust) with a taxable year ending in 2018 will be used to compute the 20% of QDBI deduction computations for 2018.  These entities might have already issued Schedule K-1s omitting the necessary information.  They should consider amending their income tax returns and issuing amended Schedule K-1s including the required information.  (The final regulations provide that amended returns can be filed for this purpose.)  Otherwise, the W-2 wages and QBIA for the entity will be considered to be zero!

W-2 wages.  W-2 wages will generally be determined based on W-2s issued by the entity during the calendar year ending within the taxable year of the entity.  A taxpayer may include W-2 wages paid by an employee leasing company on its behalf.  In that case, the employee leasing company can’t include those wages for its computation of the 20% of QDBI deduction.  (No double counting!)  Payments to common law employees who report their income as self-employed aren’t included in W-2 wages.  W-2 wages do not include any amount that is not properly included in a return filed with the Social Security Administration on or before the 60th day after the due date (including extensions) for W-2s.  File Forms W-2 for your employees on time!

A taxpayer must allocate W-2 wages to the trades or businesses that they relate to.  Wages paid for nondeductible items like household workers are disregarded.

The IRS has issued Revenue Procedure 2019-11 with methods for computing W-2 wages.

Unadjusted basis when initially acquired (UBIA).  Unadjusted basis when initially acquired (UBIA) is the tax basis of depreciable property before applying accumulated depreciation, including bonus depreciation and the Section 179 expense election.  The property must be held by and available for use in the trade or business at the close of the taxable year and must have been used at any point during the taxable year in the trade or business’s production of QDBI.

The depreciable period for the property must have not ended before the close of the individual’s or reporting passthrough entity’s taxable year for it to be included in UBIA.  The depreciable period is the lesser of (1) 10 years after the property was placed in service, or (2) the last day of the depreciable life of the property.  This means the depreciable period for most personal property is 10 years, the depreciable period for most residential real estate is 27.5 years and the depreciable period for most commercial real estate is 39 years.

There is an anti-abuse provision that property acquired within 60 days of the end of the taxable year and disposed of within 120 days of acquisition without having been used in a trade or business for at least 45 days prior to disposition will be excluded from UBIA.

Basis information for property aquired in tax years ending before 2018 will have to be determined relating to property contributed in a tax-free transaction by a partner or shareholder with a partnership (including most LLCs) or an S corporation.  Carryover information also applies for qualified property received in a Section 1031 exchange or a Section 1033 involuntary conversion.  Additional amounts invested in property received in a Section 1031 exchange or a Section 1033 involuntary conversion will be treated as the acquisition of another piece of property with an acquisition date when placed in service and its own depreciable period.

The UBIA of inherited property will generally be the fair market value on the date of death.  The acquisition date for inherited property will generally be the date of death.

The final regulations allow a Section 743(b) adjustment relating to a transfer of a partner’s interest of depreciable property to be included in UBIA.  A Section 734(b) adjustment relating to the liquidation of a partner’s interest is not included in UBIA.

Aggregation.  A significant change in the final regulations is allowing aggregation by a relevant passthrough entity.  Under the proposed regulations, only the individual taxpayer, estate or trust that claimed the 20% of QDBI deduction could make the aggregation election.  This is a simplification measure that will make reporting on Schedule K-1 easier for some passthrough entities.  The election by the passthrough entity should be done thoughtfully, because it is irrevocable and may negatively affect some partners who might have chosen different aggregation.

Aggregation, or combining two or more trade or business operations, can be helpful to make limitation amounts for W-2 wages and UBIA from one operation available for income in another operation.

These are the requirements for aggregation:

  1. The same person or group of persons must own 50% or more of each trade or business to be aggregated;
  2. The common ownership must be in place for the majority of the taxable year, including the last day of the taxable year (change from the proposed regulations), in which the items attributable to each trade or business to be aggregated are included in income;
  3. All of the trades or businesses must report on returns with the same taxable year (watch fiscal year passthrough entities!);
  4. A specified service trade or business isn’t eligible to be aggregated;
  5. The trades or businesses to be aggregated must satisfy at least two of the following factors:
  6. The trades or businesses provide products, property or services that are the same or customarily offered together.
  7. 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.
  8. The trades or businesses are operated in coordination with, or reliance upon, one or more of the businesses in the aggregated group (for example, supply chain interdependencies.)

A rental of equipment or real estate to a commonly-controlled trade or business should qualify for aggregation.  They share significant centralized business elements (B) and rely upon one another (C).

According to the final regulations, the rental or licensing of tangible or intangible property that does not rise to the level of a Section 162 trade or business is nevertheless treated as a trade or business for purposes of Section 199A, if the property is rented or licensed to a trade or business conducted by the individual or an RPE which is commonly controlled.

Once a taxpayer chooses to aggregate two or more businesses, the same aggregation must be followed in all subsequent taxable years, unless there is a change in facts such as the liquidation of a business.

The taxpayer (including RPEs) must make certain disclosures or the IRS can disallow the aggregation.

Specified service trade or business (SSTB).  Once a taxpayer exceeds the thresholds, the 20% deduction for QDBI relating to a specified service trade or business (SSTB) is phased out and eliminated.

The listed SSTBs are health, law, accounting, actuarial science, performing arts, consulting (excluding architecture and engineering), athletics, financial services, brokerage services, investing and investment management, trading, dealing in securities, partnership interests or commodities, and 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 final regulations generally are the same as the proposed regulations relating to the SSTBs, with some clarification and additional examples.

Health includes medical services provided by physicians, pharmacists, nurses, dentists, veterinarians, physical therapists, psychologists, and other similar healthcare professionals.  Services by health spas that provide physical exercise or conditioning, payment processing, or the research, testing and manufacture and/or sales of pharmaceuticals or medical devices are not considered healthcare services.

Legal services include services provided by attorneys, paralegals, legal arbitrator, mediators and similar professionals.  Services to law firms by printers, delivery services or stenography services are not legal services.

Accounting services are not determined by certification.  Accountants, enrolled agents, tax return preparers, financial auditors and professionals providing similar services are considered to be providing accounting services.

Services in the performing arts includes individuals who participate in the creation of performing arts, including actors, singers, musicians, entertainers, directors, and similar professionals.  The maintenance and operation of equipment or facilities for use in the performing arts and broadcasting services are excluded.

Consulting involves providing professional advice and counsel to clients to help achieve clients’ goals and solving problems.  Consulting embedded in or ancillary to the sale of goods or performance of services on behalf of a trade or business that is otherwise not an SSTB is not included, provided there is no separate payment for the consulting services.

Athletics service includes the performance of services who participate in athletic competition, such as athletes, coaches, and team managers.  The maintenances and operation of equipment or facilities for use in athletic events or broadcasting or distributing video of athletic events are excluded.  Schools for teaching amateur sports skills should be excluded.

Sales of commodities relating to property that is stock in trade of a trade or business or that otherwise would be included in the inventory of a trade or business are excluded.

The most favorable provision relates to the last category.  A trade or business where the principal asset of such trade or business is the reputation or skill of one or more employees or owner includes any of the following.

  1. A trade or business in which a person receives fees, compensation or other income for endorsing products or services,
  2. 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 other symbols associated with the individual’s identity,
  3. Receiving fees, compensation, or other income for appearing at an event or on radio, television or another media format.

Receiving a partnership interest or the receipt of stock of an S corporation is included in fees, compensation or other income.

For a trade or business with gross receipts of $25 million or less for a taxable year, the trade or business is not an SSTB if less than 10% of the gross receipts of the trade or business are attributable to SSTB items.  (If 10% or more of the gross receipts are attributable to SSTB items, the entire entity is treated as a SSTB.)

For a trade or business with gross receipts exceeding $25 million, the threshold will be 5% instead of 10%.

Taxpayers that have trades or businesses that include SSTB income and other income should consider splitting them into separate entities, including having separate books and records, to avoid recharacterizing what would otherwise be qualifying income to SSTB income under the above rule.  Having a separate S corporation would clearly be a separate trade or business.

If a trade or business provides property or services to an SSTB that has 50% or more common ownership, that trade or business will also be treated as a separate SSTB with respect to the related parties.  (For example, rental income from a building leased to a medical S corporation that has the same ownership will be SSTB income.)  Common ownership can be direct or indirect through family members or related entities under Internal Revenue Code Sections 267(b) or 707(b).

Trade or business of performing services as an employee.  Income from a trade or business of performing services as an employee is not QDBI.  Reporting income on Form W-2 does not determine whether an individual is an employee.  Whether an individual is an employee is a trade or business is determined by facts and circumstances.

An individual who was properly treated as an employee for Federal employment tax purposes and is later treated as not an employee while providing the same services to the trade or business will be presumed to be an employee for three years after ceasing the be treated as an employee for Federal Employment Services.  This is a rebuttable presumption that can be disputed by providing records, such as contracts or partnership agreements, that corroborate the individual’s status as a non-employee.

Disclosure for relevant passthrough entities (RPEs).  The final regulations include disclosure rules for RPEs.  If an RPE fails to properly report any item, it is considered to be zero.

Estates and trusts.  Information relating to income that is taxable to a beneficiary of an estate or trust should be reported on Schedule K-1s issued to the beneficiaries, including QDBI, W-2 wages, and UBIA for each trade or business (or aggregated trades and businesses.)

Income that isn’t distributed or distributable to the beneficiaries will be taxed to the estate or trust and the estate or trust will be eligible to claim the 20% of QDBI deduction relating to that income.  This will require allocation of the QDBI, W-2 wages and UBIA between the estate or trust and the beneficiaries of the estate or trust.

Since the trust threshold for 2018 is $157,500, the final regulations include an anti-abuse rule requiring two or more trusts to be aggregated and treated as one trust if the trusts have substantially the same grantor or grantors and substantially the same beneficiary or beneficiaries.  Spouses are treated as one person when applying this rule.  This anti-abuse rule is effective for taxable years ending after December 22, 2017.

Conclusion.  I hope this summary persuades many who are eligible for the 20% of QDBI deduction to get help with structuring their operations to maximize this tax benefit and to properly compute the deduction.

The software providers are scrambling to incorporate the requirements in their tax return preparation software.

You might not be able to correctly compute the deduction using the carryover information in the system.  The output should be carefully reviewed to be sure it is complete, especially for desireable elections.  If the information isn’t properly reported, the deduction could be lost entirely.

Tax and financial advice from the Silicon Valley expert.