CONFERENCE AGREEMENT REACHED SETTING STAGE FOR ENACTMENT BEFORE THE NEW YEAR
On Friday evening, December 15, 2017, the conference report to H.R. 1, “Tax Cuts and Jobs Act” (the “Act”) was released. The conference report was agreed to by the House and Senate conferees last week and reflects the resolved differences between the House bill and the Senate amendment. While the final compromise looks more like the Senate bill, it reflects many compromises, some additions, deletions, and other modifications that are in step with Congressional priorities. This Alert discusses the major provisions contained in the conference report. It is important to note that most provisions in the bill expire after December 31, 2025, to comply with Senate budget reconciliation rules. The exception is the reduction in corporate income tax rate; the new 21-percent rate will be permanent.
The House and Senate are expected to vote on the conference report this week. The President is expected to sign the bill before end of the year.
Key provisions of the report affecting individual taxpayers include lower tax rates in modified brackets, higher standard deductions, and limitations on certain itemized deductions such as state and local taxes. For corporations, the tax rate is reduced to a flat 21 percent and the alternative minimum tax is repealed. Certain partners and shareholders will be eligible to deduct 20 percent of their income from pass-through entities. Foreign taxation shifts to a territorial system, and the deemed repatriation tax rate is 15.5 percent for earnings held in cash or cash equivalents, and 8 percent on all other earnings. The report also includes increases in certain property expensing and depreciation limits, and changes to accounting methods, as detailed below.
The conference report includes a reduction of individual rates, which are generally effective January 1, 2018, and expire December 31, 2025. For individuals:
- The top individual rate will be 37 percent for joint filers with more than $600,000 of taxable income and single filers with more than $500,000 of taxable income. The current top rate is 39.6 percent for joint filers with taxable income over $466,951 and single filers with taxable income over $415,051.
- The standard deduction will be increased to $24,000 for joint filers and $12,000 for single filers. The personal exemption is repealed through 2025. Currently, the standard exemption is $12,600 for joint filers and $6,300 for single filers.
- The Child Tax Credit is increased to $2,000 per qualifying child, with up to $1,400 being fully refundable. An additional $500 credit may be available for other dependents. The Credit begins to phase out for joint filers with adjusted gross income exceeding $400,000 and single filers with adjusted gross income exceeding $200,000. Currently, the Child Tax Credit is $1,000 per qualifying child and is nonrefundable. The Child Tax Credit currently phases out for joint filers with adjusted gross income exceeding $110,000.
- The adjusted gross income limitation for cash contributions to certain charitable organizations is increased to 60 percent. Currently, the adjusted gross income limitation for cash contributions to public charities is 50 percent.
- The itemized deduction for medical expenses is made more available for taxpayers under age 65 by reducing the adjusted gross income floor for 2017 and 2018 to 7.5 percent for all taxpayers. Currently, the adjusted gross income floor is 10 percent for taxpayers under age 65 and 7.5 percent for taxpayers over age 65.
- The itemized deduction for state and local taxes has been limited to $10,000 for the aggregate sum of real property taxes, personal property taxes, and either (i) state or local income taxes or (ii) state and local sales tax. Currently, each of those state and local taxes is a separate itemized deduction with no limitation. Further, the bill prohibits a deduction in excess of the $10,000 limitation for 2018 state and local taxes actually paid in 2017.
- The itemized deduction for mortgage interest has been reduced to only permit the deduction of interest on acquisition indebtedness not exceeding $750,000. The additional interest deduction for home equity indebtedness is repealed through 2025. Currently, taxpayers can take a combined acquisition and home equity indebtedness interest expense deduction on $1,100,000 of debt. Debt incurred on or before December 15, 2017, is grandfathered in to the current limitations. Further, taxpayers who entered into a written binding contract before December 15, 2017, to close on the purchase of a principal residence before January 1, 2018, and who purchase such residence before April 1, 2018, are also eligible for the current higher limitations.
- All miscellaneous itemized deductions subject to the two percent adjusted gross income floor have been repealed through 2025. This includes the miscellaneous itemized deductions for investment fees and expenses, tax preparation fees, and unreimbursed employee business expenses among others.
- The overall limitation on itemized deductions enacted in 1990, often called the “Pease limitation” (named after former Congressman Donald Pease) has been repealed through 2025.
- For any divorce or separation agreements entered into after December 31, 2018, the deduction for alimony or separate maintenance payments is repealed. Similarly, the exclusion from gross income for alimony or separate maintenance payments is repealed, thus requiring recipients to include those payments in their gross income. Existing alimony and separate maintenance agreements are grandfathered in as are any modifications to existing agreements unless, however, the parties to a modification expressly provide that the new rules should apply to the modified agreement.
- The lifetime exemption for estate and gift taxes is increased to $10,000,000 as of 2011 (and adjusted forward from there for inflation). As a result, taxpayers making gifts, and the estates of decedents dying, in 2018 would have a roughly $11,000,000 basic exclusion amount. (Estate, gift, and generation-skipping transfer taxes are not repealed; the House bill would have repealed estate and generation-skipping transfer taxes.)
- The shared responsibility payment for individuals failing to maintain minimum essential health insurance coverage has been reduced to $0 beginning after December 31, 2018.
- The individual alternative minimum tax (AMT) has been retained. However, the exemption amounts have been increased to $109,400 for joint filers and $70,300 for single filers. The current exemptions are $83,800 and $53,900 for joint and single filers, respectively. (The House bill would have repealed the individual AMT.)
- The earlier Senate proposal to require the basis of specified securities be determined on a first-in, first-out basis is not included in the conference report. The Senate had sought to prevent taxpayers from specifically identifying the lot sold in the sale of specified securities.
- The corporate tax rate has been reduced by forty percent—from thirty-five to twenty-one percent. The corporate AMT has been repealed. The net interest deduction limit has been kept at 30 percent of adjusted taxable income with an indefinite carryforward period. Small businesses with less than $25 million in annual gross receipts over a three-year period are exempted from the interest limitation. While the conference agreement does repeal the section 199 domestic production deduction, the effective date of the repeal is not until December 31, 2018.
- Net operating losses (NOLs) are limited to 80 percent of taxable income and may only be carried forward, indefinitely. NOLs are likely to increase based on expanded expensing of capital investments in certain property – including property that had previously been used by, and provided benefit to, another taxpayer. The property must be placed in service between September 27, 2017, and January 1, 2023, to be fully deducted. The 100-percent allowance is phased down by 20 percent per year beginning in 2023.
- Certain capital contributions from state and local governments will no longer be excluded from income under section 118. Section 108(e)(6), however, will not be altered for computations of cancellation of debt income. And the meaningless gesture doctrine will continue to apply to section 351 exchanges of wholly-owned corporations in which no shares are issued. Like-kind exchanges under section 1031 will be limited to real property. The 70 and 80 percent dividend received deduction amounts for corporations have been reduced to 50 and 65 percent, respectively.
- Under the conference report, shareholders of S corporations may obtain a deduction equal to the lesser of 20 percent of qualified business income, which requires a complex computation, with respect to such trade or business, or 50 percent of the W-2 wages with respect to such business. Further, a nonresident alien individual may now be in indirect shareholder of an S corporation as a potential current beneficiary of an electing small business trust.
TAXATION OF PARTNERSHIPS AND PASS THROUGH ENTITIES
- For tax years beginning after December 31, 2017, partners and shareholders of S corporations and LLCs may deduct up to 20 percent of their qualified business income from the partnership or S Corporation. For taxpayers in a service business (e.g., law or accounting), only partial deduction is permitted if their taxable income is greater than $157,500 ($315,000 if married filing a joint return), with all deduction benefits phased out at $207,500 ($415,000 if married filing a joint return.
- Under the conference agreement, application of Section 1031 is limited to transactions involving the exchange of real property that is not held primarily for sale. The like-kind exchange rules will no longer apply to any other property, including personal property that is associated with real property. This provision will be effective for exchanges completed after December 31, 2017. However, if the taxpayer has started a forward or reverse deferred exchange prior to December 31, 2017, section 1031 may still be applied to the transaction even though completed after December 31, 2017.
- The technical termination rules under section 708(b)(1)(B) are repealed for tax years beginning after 2017. No changes are made to the actual termination rules under section 708(b)(1)(A).
- Under general rules, gain recognized by a partnership upon disposition of a capital asset held for at least one year is characterized as long-term capital gain. Further, the sale of a partnership interest held for at least one year will generate long-term capital gain, except to the extent section 751(a) applies. Under the conference agreement, long-term capital gain will only be available with respect to “applicable partnership interests” to the extent the capital asset giving rise to the gain has been held for at least three years.