TAX CUTS AND JOBS ACT OF 2017 – BUSINESS UPDATES
On December 22, the President signed into law the Tax Cuts and Jobs Act of 2017 (TCJA). TCJA is the largest tax overhaul in 30 years and will affect almost every individual taxpayer and business in the United States. Unlike the provisions for individuals, which generally expire after 2025, most business-related provisions in the TCJA are permanent and take effect in tax years beginning after 2017
Summary: For businesses, highlights of the TCJA include: (1) an increase in amounts that may be expensed under bonus depreciation and Section 179; (2) a 21 percent flat corporate tax rate; (3) a new business deduction for sole proprietorships and pass-through entities; and (4) the elimination of the corporate alternative minimum tax (AMT).
The following is a summary of some of the more significant changes under the new tax law that may affect your business.
Reduction in Corporate Tax Rate and Dividends Received Deduction
TCJA eliminates the graduated corporate tax rate structure and instead taxes corporate taxable income at 21 percent. It also eliminates the special tax rate for personal service corporations and repeals the maximum corporate tax rate on net capital gain as obsolete.
A corresponding change reduces the 70 percent dividends received deduction available to corporations that receive a dividend from another taxable domestic corporation to 50 percent, and the 80 percent dividends received deduction for dividends received from a 20 percent owned corporation to 65 percent.
Corporate Alternative Minimum Tax (AMT) Eliminated
TCJA repeals the corporate AMT. It also allows the AMT credit to offset the regular tax liability for any taxable year. In addition, the AMT credit is refundable for any taxable year beginning after 2017 and before 2022 in an amount equal to 50 percent (100 percent in taxable years beginning in 2021) of the excess of the minimum tax credit for the taxable year over the amount of the credit allowable for the year against regular tax liability.
Enhanced Bonus Depreciation Deduction
TCJA extends and modifies the additional first-year (i.e., “bonus”) depreciation deduction, which had generally been scheduled to end in 2019, through 2026 (through 2027 for longer production period property and certain aircraft). Under the new law, the 50 percent additional depreciation allowance is increased to 100 percent for property placed in service after September 27, 2017, and before January 1, 2023 (January 1, 2024 for longer production period property and certain aircraft), as well as for specified plants planted or grafted after September 27, 2017 and before January 1, 2023.
The 100 percent allowance is phased down by 20 percent per calendar year for property placed in service, and specified plants planted or grafted, in taxable years beginning after 2022 (after 2023 for longer production period property and certain aircraft).
TCJA maintains the bonus depreciation increase amount of $8,000 for luxury passenger automobiles placed in service after December 31, 2017 that had been scheduled to be phased down in 2018 and 2019.
TCJA removes the requirement that, in order to qualify for bonus depreciation, the original use of qualified property must begin with the taxpayer. Thus, the provision applies to purchases of used as well as new items.
TCJA expands the definition of qualified property eligible for the additional first year depreciation allowance to include qualified film, television and live theatrical productions, effective for productions placed in service after September 27, 2017 and before January 1, 2023.
Enhanced Section 179 Expensing
TCJA increases the maximum amount a taxpayer may expense under Code Section 179 to $1 million (previously $500,000) and increases the phase-out threshold amount to $2.5 million. The $1 million amount is reduced by the amount by which the cost of qualifying property placed in service during the taxable year exceeds $2.5 million.
In addition TCJA expands the definition of Code Section 179 property to include certain depreciable tangible personal property used predominantly to furnish lodging or in connection with furnishing lodging. Examples are furniture, refrigerators, ranges and other equipment used in the living quarters.
TCJA expands the definition of qualified real property eligible for Code Section 179 expensing to include subsequent improvements to nonresidential real property. Eligible improvements include roofs; heating, ventilation and air-conditioning units; fire protection and alarm systems; and security systems.
Modifications to Depreciation Limits on Luxury Automobiles and Personal Use Property
TCJA increases the depreciation limits under Section 280F that apply to listed property. For passenger automobiles placed in service after December 31, 2017, and for which the additional first year depreciation deduction is not claimed, the maximum amount of allowable depreciation is $10,000 for the year the vehicle is placed in service, $16,000 for the second year, $9,600 for the third year and $5,760 for the fourth and later years in the recovery period. The limits are indexed for inflation for passenger autos placed in service after 2018.
In addition, TCJA removes computer or peripheral equipment for the definition of listed property. Such property is therefore not subject to the heightened substantiation requirements that apply to listed property.
Modification of Like-Kind Exchange Rules
TCJA modifies the rule for like-kind exchanges by limiting its application to real property that is not held primarily for sale. While the provision generally applies to exchanges completed after December 31, 2017, an exception is provided for any exchange if the property disposed of by the taxpayer in the exchange is disposed of on or before December 31, 2017, or the property received by the taxpayer in the exchange is received on or before such date.
Other Changes Relating to Cost Recovery and Property Transactions
TCJA makes the following additional changes with respect to cost recovery and property transactions:
- Allows for expensing of certain costs of replanting citrus plants lost by reason of casualty;
- Shortens the alternative depreciation system (ADS) recovery period for residential property from 40 to 30 years;
- Allows an electing real property trade or business to use the ADS recovery period to depreciate real and qualified improvement property;
- Shortens the recovery period from 7 to 5 years for certain machinery or equipment used in a farming business;
- Repeals the required use of the 150 percent declining balance method for depreciating property used in a farming business (i.e., for 3-. 5-. 7- and 10-year property);
- Excludes various types of self-created property from the definition of a “capital asset”, including patents, inventions, models or designs (whether or not patented), and secret formulas and processes;
- Specifies situations in which a contribution to the capital of a corporation is includable in the gross income of the corporation (i.e., contributions by a customer or potential customer, and contributions by governmental entities and civic groups); and
- Tweaks the carried interest rule to provide that a profits interest must be held for three years rather than one year to receive favorable long-term capital gain treatment.
Repeal of Domestic Activities Production Deduction
The domestic activities production deduction is eliminated for non-corporate taxpayers for tax years beginning after December 31, 2017. For C corporations, the deduction is eliminated for tax years beginning after December 31, 2018. Special rules apply to agricultural and horticultural cooperates.
New Deduction for Qualified Business Income
If you are a sole proprietor, a partner in a partnership, a member in an LLC taxed as a partnership (hereafter, “partner”), or a shareholder in an S corporation, TCJA provides a new deduction for qualified business income for taxable years beginning after December 31, 2017 and before January 1, 2026. Trusts and estates are also eligible for this deduction.
The amount of the deduction is generally 20 percent of the taxpayer’s qualifying business income from a qualified trade or business.
Example: In 2018, Joe receives a salary of $100,000 from his job at XYZ Corporation and $50,000 of qualified business income from a side business that he runs as a sole proprietor. Joe has no other items of income or loss. Joe’s deduction for qualified business income is $10,000 (20 percent of $50,000).
The deduction for qualified business income is claimed by individual taxpayers on their personal tax returns. The deduction reduces taxable income, and is not used in computing adjusted gross income (AGI). Thus, it does not affect limitations based on AGI.
The deduction is subject to several restrictions and limitations, discussed below.
Qualified Trade or Business. A qualified trade or business means any trade or business other than (1) a specified service trade or business or (2) the trade or business of being an employee. A “specified service trade or business” is defined as any trade or business involving the performance of services in the fields of health, law, accounting, actuarial science, performing arts, consulting, athletics, financial services, brokerage services, including investing and investment management, trading or 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. Engineering and architecture services are specifically excluded from the definition of a specified service trade or business.
Special Rule Where Taxpayer’s Income is Below a Specified Threshold. The rule disqualifying specified service trades or businesses from being considered a qualified trade or business does not apply to individuals with taxable income of less than $157,500 ($315,000 for joint filers). After an individual reaches the threshold amount, the restriction is phased in over a range of $50,000 in taxable income ($100,000 for joint filers). If an individual’s income falls within the range, he or she is allowed a partial deduction. Once the end of the range is reached, the deduction is completely disallowed.
“Domestic” Business Income Requirement. Items are treated as qualified items of income, gain, deduction and loss only to the extent they are effectively connected with the conduct of a trade or business within the United States.
Qualified Business Income. Qualified business income means the net amount of qualified items of income, gain, deduction and loss with respect to the qualified trade or business of the taxpayer. Qualified business income does not include any amount paid by an S corporation that is treated as reasonable compensation of the taxpayer, or any guaranteed payment (or other payment) to a partner for services rendered with respect to the trade or business. Qualified items do not include specified investment-related income, deductions or losses, such as capital gains and losses, dividends and dividend equivalents, interest income other than that which is properly allocable to a trade or business, and similar items.
Qualified REIT dividends, cooperative dividends, and publicly traded partnership income. These items of income are also eligible for the 20 percent qualified business income deduction, subject to special rules.
Loss Carryovers. If the net amount of qualified business income from all qualified trades or businesses during the tax year is a loss, it is carried forward as a loss from a qualified trade or business in the next tax year (and reduces the qualified business income deduction for that year).
W-2 Wage Limitation. The deductible amount for each qualified trade or business is the lesser of:
- 20 percent of the taxpayer’s qualified income with respect to the trade or business; or
- The greater of:
a. 50 percent of the W-2 wages with respect to the trade or business, or
b. The sum of 25 percent of the W-2 wages with respect to the trade or business and 2.5 percent of the unadjusted basis, immediately after acquisition, of all qualified property (generally all depreciable property still within its depreciable period at the end of the tax year).
Example: Susan owns and operates a sole proprietorship that sells cupcakes. The cupcake business pays $100,000 in W-2 wages and has $350,000 in qualified business income. For the sake of simplicity, assume the qualified property of the business is negligible. Susan’s deduction for qualified business income is $50,000, which is the lesser of (a) 20 percent of $350,000 in qualified business income ($70,000), or (b) 50 percent of W-2 wages ($50,000).
The W-2 wage limitation does not apply to individuals with taxable income of less than $157,500 ($315,000 for joint filers). After an individual reaches the threshold amount, the W-2 limitation is phased in over a range of $50,000 ($100,000 for joint filers).
Allocation of Partnership and S corporation Items. In the case of a partnership or S corporation, the business income deduction applies at the partner or shareholder level. Each partner in a partnership takes into account the partner’s allocable share of each qualified item of income, gain, deduction and loss, and is treated as having W-2 wages for the taxable year equal to the partner’s allocable share of W-2 wages of the partnership. Similarly, each shareholder in an S corporation takes into account the shareholder’s pro rata share of each qualified item and W-2 wages.
Taxable Income Limitation on the Deduction for Qualified Business Income. The deduction for qualified business income is limited to 20 percent of the taxpayer’s taxable income, reduced by any net capital gains.
Modification of Net Operating Loss (NOL) Rules
TCJA eliminates the NOL carryback except for farmers and certain insurance companies. Farmers are allowed a two year carryback (formerly five years). NOLs can be carried forward indefinitely, except for certain insurance companies. In tax years beginning after December 31, 2017, the NOL deduction is limited to 80 percent of taxable income.
Carryover of Business Losses
TCJA provides that, for taxable years beginning after December 31, 2017 and before January 1, 2026, excess business losses of a taxpayer other than a corporation are not allowed for the taxable year. Instead, such losses must be carried forward and treated as part of the taxpayer’s net operating loss (NOL) carryforward in subsequent taxable years. Excess business losses are defined as the sum of aggregate deductions of the taxpayer over the sum of aggregate gross income or gain of the taxpayer attributable to trades or businesses, plus a threshold amount. The threshold amount for a taxable year is $250,000 ($500,000 for joint filers), indexed for inflation. In the case of a partnership or S corporation, the provision applies at the partner or shareholder level. For taxable years beginning after December 31, 2017 and beginning before January 1, 2026, the present-law limit relating to excess farm losses does not apply.
Example: In 2018 John, a single taxpayer, has a net business loss of $300,000. John’s excess business loss is $50,000 ($300,000 – $250,000 threshold amount). The excess business loss is treated as part of John’s NOL carryover to the following tax year.
Relaxed Gross Receipts Test for Various Accounting Methods
TCJA expands the universe of taxpayers who can use various accounting methods by increasing the gross receipts threshold (“gross receipts test”) under which those methods may be used. TCJA increases the limit for the gross receipts test to $25 million for using the cash method of accounting (including the use by farming C corporations and farming partnerships with a C corporation partner).
The new law also increases the limit for the gross receipts test to $25 million for exemption from the following accounting requirements/methods:
- Uniform capitalization rules;
- The requirement to keep inventories (allowing taxpayers to treat inventories as non-incidental materials and supplies, or in another manner conforming with the taxpayer’s financial accounting treatment of inventories); and
- The requirement to use the percentage-of-completion method for certain long-term contracts (allowing the use of the more favorable completed-contract method, or any other permissible exempt contract method).
Additional requirements and restrictions apply to the use of the above-mentioned accounting methods. For most, only the dollar limit for the gross receipts test has been relaxed.
Accounting Method Rules Relating to Income Recognition Modified
TCJA revises the rules associated with the recognition of income. Specifically, the new law requires a taxpayer subject to the all events test for an item of gross income to recognize such income no later than the taxable year in which such income is taken into account as income on an applicable financial statement or another financial statement under rules specified by the Secretary, but provides an exception for long-term contract income to which Code Section 460 applies.
TCJA also codifies the current deferral method of accounting for advance payments for goods and services provided by the IRS under Revenue Procedure 2004-34. That is, the law allows taxpayers to defer the inclusion of income associated with certain advance payments to the end of the tax year following the tax year of receipt if such income also is deferred for financial statement purposes.
Interest Deduction Rules Changed for Certain Taxpayers
Under TCJA, a taxpayer’s deduction for business interest is limited to the sum of business interest income plus 30 percent of adjusted taxable income for the taxable year. There is an exception to this limitation, however, for certain small taxpayers, certain real estate businesses that make an election to be exempt from this rule, and businesses with floor plan financing, which is a specialized type of financing used by car dealerships, and for certain regulated utilities.
For smaller taxpayers, TCJA exempts from the interest limitation taxpayers with average annual gross receipts for the three taxable year period ending with the prior taxable year that do not exceed $25 million. Further, at the taxpayer’s election, any real property development, redevelopment, construction, reconstruction, acquisition, conversion, rental, operation, management, leasing or brokerage trade or business is not treated as a trade or business for purposes of the limitation, and therefore the limitation does not apply to such trades or businesses.
Limitation on Deduction by Employers of Expenses for Fringe Benefits
TCJA provides that no deduction is allowed with respect to:
- An activity generally considered to be entertainment, amusement or recreation;
- Membership dues with respect to any club organized for business, pleasure, recreation or other social purposes; or
- A facility or portion thereof used in connection with any of the above items.
Thus, the present-law exception to the deduction disallowance for entertainment, amusement or recreation that is directly related to (or, in certain cases, associated with) the active conduct of the taxpayer’s trade or business (and the related rule applying a 50 percent limit to such deductions) is repealed.
TCJA also disallows a deduction for expenses associated with providing any qualified transportation fringe benefit to employees of the taxpayer, and 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.
A business may still generally deduct 50 percent of the food and beverage expenses associated with operating their trade or business (e.g., meals consumed by employees during work travel). For amounts incurred and paid after December 31, 2017 and until December 31, 2025, this 50 percent limitation is expanded to expenses of the employer associated with providing food and beverages to employees through an eating facility that meets requirements for de minimis fringes and for the convenience of the employer. Such amounts incurred and paid after December 31, 2025 are not deductible.
Employer Credit for Paid Family and Medical Leave
For 2018 and 2019, TCJA allows eligible employers to claim a general business credit equal to 12.5 percent of the amount of wages paid to qualifying employees during any period in which such employees are on family and medical leave if the rate of payment under the program is 50 percent of the wages normally paid to an employee. The credit is increased by 0.25 percentage points (but not above 25 percent) for each percentage point by which the rate of payment exceeds 50 percent. Note that an employer must have a written policy in place that provides family and medical leave to all employees on a non-discriminatory basis in order to qualify for the credit.
Partnership Rule Changes
Several changes were made to the partnership tax rules.
First, gain or loss from the sale or exchange of a partnership interest is treated as effectively connected with a U.S. trade or business to the extent that the transferor would have had effectively connected gain or loss had the partnership sold all of its assets at fair market value as of the date of the sale or exchange. Any gain or loss from the hypothetical asset sale by the partnership is allocated to interests in the partnership in the same manner as non-separately stated income and loss.
Second, the transferee of a partnership interest must withhold 10 percent of the amount realized on the sale or exchange of the partnership interest unless the transferor certifies that the transferor is not a nonresident alien individual or foreign corporation.
Third, TCJA modifies the definition of a substantial built-in loss such that a substantial built-in loss is considered to exist if the transferee of a partnership interest would be allocated a net loss in excess of $250,000 upon a hypothetical disposition by the partnership of all partnership’s assets in a fully taxable transaction for cash equal to the assets’ fair market value, immediately after the transfer of the partnership interest.
Fourth, TCJA modifies the basis limitation on partner losses to provide that a partner’s distributive share of items that are not deductible in computing the partnership’s taxable income, and not properly chargeable to capital account, are allowed only to the extent of the partner’s adjusted basis in its partnership interest at the end of the partnership taxable year in which an expenditure occurs. Thus, the basis limitation on partner losses applies to a partner’s distributive share of charitable contributions and foreign taxes. Lastly, TCJA repeals the rule providing for technical terminations of partnerships. Under that rule, a partnership’s existence did not necessarily end. Rather, it resulted in the termination of some tax attributes and the possibly early closing of the tax year.
S Corporation Changes
TCJA makes several changes to the tax rules involving S corporations.
First, it provides that income that must be taken into account when an S corporation revokes its election is taken into account ratably over six years, rather than the four years under prior law.
Second, it allows a nonresident alien individual to be a potential current beneficiary of an electing small business trust (ESBT).
Third, it provides that the charitable contribution deduction of an ESBT is not determined by the rules generally applicable to trusts but rather by the rules applicable to individuals. Thus, the percentage limitations and carryforward provisions applicable to individuals apply to charitable contributions made by the portion of an ESBT holding S corporation.
International Tax Changes – TCJA makes sweeping changes to the United States’ international tax regime through a series of highly complex provisions that are beyond the scope of this paper.
(Updated January 22, 2018)