New SALT Implications in Proposed House and Senate Tax Reform Bills - McDermott Will & Emery

New SALT Implications in Proposed House and Senate Tax Reform Bills



The federal tax reform legislation is a work in progress, and its final form will undoubtedly be affected by political considerations and lobbying by interested parties. Both the House and Senate bills deserve careful study by taxpayers and their representatives, as many of the provisions will have an effect on state and local taxes.

In Depth

The US House of Representatives adopted a tax reform bill on November 16 (House Bill), and the Senate adopted a tax reform bill on December 2 (Senate Bill). Representatives of the House and the Senate will develop final legislation, which will be submitted to both bodies for approval. The Bills are controversial in many respects, and many taxpayers and taxpayer advocacy groups are opposing particular provisions. The one certainty is that what Congress adopts, if anything, will not be identical to either Bill. Nevertheless, they both deserve careful study by taxpayers and their representatives, as many of the provisions will have an effect on state and local taxes.

The Bills are named the ‘Tax Cuts and Jobs Act,’ not the ‘Cuts, Cuts, and Cuts Act’ title that President Trump had preferred. Their objective is to reduce taxes, leading to economic growth that will generate tax revenue that will more than offset the revenue losses resulting from the proposed rate reductions, but many economists appear to be skeptical about this proposition. This article addresses provisions of particular interest to SALT practitioners. It does not purport to be a complete analysis of the Bills, and many of their provisions will not be mentioned here.

The reductions in individual federal tax rates would not have an immediate impact on SALT liabilities, but the expansion of the standard deduction and the repeal of the deduction for personal exemptions would affect the federal taxable income of many individuals, and these changes would be passed through to their state income tax returns in states that use federal taxable income as the base for calculating state taxable income. Other major individual changes would include repealing the deduction for state and local income taxes. The Bills would allow state and local property taxes to be deducted up to $10,000. These changes could result in many people who now itemize deductions taking the standard deduction instead. Individuals may want to recalculate their predicted state and local income tax liabilities with a view to adjusting their estimated tax payments.

The repeal of the deduction for state and local income taxes would be effective for tax years beginning in 2018. This raises the question of whether individual taxpayers should consider prepaying part, or even all, of their predicted 2018 state income tax liability in 2017 so as to get a federal deduction for the payment. It would be one thing to prepay in 2017 a state estimated income tax payment that is due on April 15, 2018, but could this be pushed farther? Could a taxpayer prepay his or her entire predicted 2018 state income tax liability in 2017 and get a deduction for it in 2017? Could the IRS challenge such a position based on a general argument that it would distort the taxpayer’s liability? The IRS has not addressed this issue in published guidance, but rulings suggest that a cash-basis taxpayer can deduct state income taxes when paid if the payments are based on a reasonable estimate of tax liability (Rev. Rul. 71-190, 1971-1 C.B. 70; Rev. Rul. 82-208, 1982-2 C.B. 58). Section 461 of the Internal Revenue Code, which generally addresses the timing of deductions, would not seem to apply to this situation. Of course, prepaying state or local income taxes could be done only if it were permitted by the laws of the applicable jurisdiction.

The Bills exempt from the repeal taxes incurred in engaging in a trade or business or an income-producing activity. An issue has been raised as to whether state and local income taxes paid on business income could be deducted as business expenses by self-employed persons and not as itemized deductions, in which case they would not be affected by the repeal.

The proposed repeal of the deductions for state and local income taxes and property taxes would increase the burden of those taxes on individuals. In the past, state legislatures regarded the federal deduction as an indirect subsidy that reduced the burden of state taxes and, hence, enabled those taxes to be imposed at higher rates than would otherwise have been the case. The repeal would eliminate that subsidy and might put pressure on state legislatures to reduce state taxes.

The House Bill would provide for a maximum 25 percent tax rate on business income from pass-through entities such as partnerships, limited liability companies or S corporations. The purpose of the provision is to provide an incentive to owners of small businesses. One is reminded of the ill-fated attempt by Kansas Governor Sam Brownback, who persuaded the legislature to totally exempt pass-through income from tax, resulting in the odd phenomenon that a partner in a law firm was not liable for Kansas income tax, although tax had to be paid by the janitor who cleaned the law firm’s offices at night. It also resulted in severe revenue shortfalls and was repealed after a few years.

The House Bill contains a number of provisions intended to confine the benefit of the low tax rate on income from flow-through entities to income from active business operations. Further, the House Bill’s intent is to exclude compensation income from the application of the lower tax rate. The House Bill contains protective provisions designed to prevent game-playing by attempting to characterize compensation for services, which would not be eligible for the lower rate, from income from owning the business. The intricacies of these protective provisions will not be dwelled upon here, in part because space does not permit it and in part because they are bound to be changed as the proposal makes its way through Congress, but some of the implications are addressed below. Whether income is compensation income or income from an entity’s business can affect the extent to which it is taxed to nonresidents of a taxing state. Typically, a nonresident would pay state tax on compensation derived from services performed within the taxing state. Income from a flow-through business is typically taxed to a nonresident based on his or her share of the flow-through entity’s income that is derived from conducting business in the state. Moreover, the calculation of an entity’s net income, reduced by all or part of compensation paid to owners for services, can affect the entity’s liability for entity-level income taxes that are imposed by some jurisdictions. Would an amount that is not actually paid as compensation but that is treated as compensation for purposes of a federal anti-avoidance provision be treated as compensation for state and local income tax purposes? The answer is not at all clear.

The Senate Bill takes a different approach. It would allow an individual to deduct 23 percent of “domestic qualified business income” from a partnership, S corporation or sole proprietorship. The deduction would not be available to specified service businesses (e.g., law and accounting firms) except in case of an individual whose taxable income did not exceed $500,000 for married individuals filing jointly ($250,000 for other individuals). The benefit of the deduction would be phased out for individuals earning more than these amounts. Eligible income would not include reasonable compensation paid to an S corporation shareholder or guaranteed payments to partners that reflected compensation for services. Investment-related income would not be eligible.

Proscribed professional service firms may attempt to convert some of their income to non-service income by transferring tangible and intangible assets to other partnerships which would then lease them to the professional partnership.

A provision addressing the treatment of carried interest income was added to the House Bill during the Ways and Means Committee mark-up process and is included in the Senate Bill. A carried interest is an interest in a partnership or limited liability company that is received by the venture’s organizers and that typically involves a 20 percent interest in the entity’s profits even though the promoter has only put in 1 percent or less of the entity’s capital. This structure is often used in hedge funds and other investment partnerships. If the fund realizes long-term capital gains, those are passed through to all of the partners, including the promoters. Some people have argued that the promoters’ share should be treated as ordinary income because it represents partial compensation for the promoters’ services. The Bills would require the promoter’s share of capital gains to be short-term capital gains, taxed at ordinary income rates, unless the property had been held for at least three years. The “property” appears to be property owned by the partnership, not partnership interests owned by the partners.

This change would not affect states that did not provide special treatment for capital gains. The Bills do not treat carried interest income as compensation income, which is another approach that has been suggested. If that approach were followed, the change could have dramatic state and local tax consequences because compensation income is typically taxed to nonresidents who earn it in a taxing state whereas capital gains on securities are typically not taxed to nonresidents.

Both Bills would repeal a number of itemized deductions that are available to individuals, including deductions for tax preparation expenses, medical expenses, moving expenses and contributions to medical savings accounts. States would have to decide whether to decouple from these changes. While some of them may be noncontroversial, the changes to the deductions for medical expenses and medical savings accounts could raise policy issues for the states, particularly in light of the controversies surrounding the Affordable Care Act and the cost of medical expenses generally. State legislatures can be expected to focus on these provisions.

Both Bills would increase the limitation on deducting cash contributions to public charities and some private foundations from 50 percent to 60 percent. It is unlikely that states would choose to decouple from this provision, but this may well be on the table, particularly in states that have been experiencing budgetary pressures.

The Bills contain several provisions that would affect employees and that could give rise to state and local decoupling because of their impact on individuals who vote. One change, which seems at first blush to be unfair, would deny individuals a deduction for trade or business expenses incurred in their employment. This means that employees would not be able to deduct expenses like local business travel, subscriptions to professional publications, professional organization dues and business entertainment, even though their self-employed counterparts would be able to deduct them. While the current deduction is limited by the restrictions of IRC section 212, many employees have business expenses that exceed those levels and this could be a significant change for them. It is possible that state legislatures might choose to decouple from this provision because of its impact on individuals. The Ways and Means Committee’s explanation of the House Bill indicates that the expansion of the standard deduction and the lower overall tax rates would reduce the adverse impact of this change and that the change would spare employees the need to keep track of business expenses, but this would be of no comfort to higher-income employees.

Another employment-related change in the House Bill would be a curtailment of the exclusion now provided by IRC section 119 for employer-provided housing. Under present law, employer-provided housing is not taxable if it is provided for the convenience of the employer, is on the employer’s business premises, and is a condition of employment. There is no dollar limitation. The House Bill would limit the exclusion to $50,000 and would phase it out for individuals earning more than $120,000 a year. This change could affect executives of hospitals and educational institutions that occupy employer-owned housing on or immediately adjacent to the employer’s premises. The Senate Bill does not contain a comparable provision. If the House Bill becomes law, some states might choose to decouple from this provision.

Both Bills would repeal the individual income tax exclusions for dependent care assistance programs, moving expenses and adoption assistance programs. Employers may object to these provisions.

President Trump and others have long advocated repealing the estate tax, which they describe as a “death” tax. The House Bill would repeal the estate tax, effective in 2023, along with the generation- skipping transfer tax, which has always been viewed as a backstop for the estate tax. The transfer tax exclusion would be doubled from $5 million to $10 million. The top estate tax rate would be lowered to 35 percent. The gift tax would be left in place, thus creating an incentive for wealthy people to hold on to property rather than giving it to family members during their lifetimes. There would be no change to the current rule that allows property held at death to receive a new income tax basis equal to its value at death. The juxtaposition of these provisions would mean that appreciation in the value of property held at death would never be subject to income tax or estate tax.

States that now have an estate tax would have to decide whether to follow the federal treatment. If a state chose to impose an estate tax beginning in 2023, it would have to have its own statute since there would no longer be a federal statute to incorporate by reference. The form that such an estate tax might take would be subject to debate, and one can imagine legislators having strong views on deductions, credits and other items that would have to be considered. One can also imagine that the next five years might see discussions in Congress as to whether to repeal the repeal of the estate tax. A cynic might say that a five-year deferral of repeal would amount to a ducking of the issue by Congress. The estate tax with the increased exclusion would affect only a tiny fraction of estates, those being of the very wealthiest individuals. Proponents of estate tax repeal have, despite extensive efforts, failed to come up with a single example of a family farm or family business that was sold under distress circumstances because of the estate tax under present law. Their task would be even harder with the doubled transfer tax exclusion. It is likely that states will hold up on making any decisions about repealing or modifying their estate taxes until the effective date of federal repeal gets closer.

The Senate Bill would not repeal the estate and generation skipping transfer taxes but it would double the exclusion from $5,000,000 to $10,000,000.

The Bills contain a number of business tax changes, some of which have received a considerable amount of publicity and some of which have not.

Both Bills provide new rules for deducting the cost of business property in the year of purchase.

The Bills would allow taxpayers to deduct the cost of qualified property in the year in which it is placed in service. This regime would be in effect until January 1, 2023, with an additional year for specific property with a longer production period.

The taxpayer would not have to be the first user of the property under the House Bill, although the taxpayer would have to be using the property for the first time. The Senate Bill would allow expensing only for new property. The new rules would apply to property acquired after September 27, 2017, which would suggest that some heavy lobbying might have taken place by a taxpayer that acquired property after that date but before the date on which the Ways and Means Committee first released the House Bill. The change would be effected by amendments to the depreciation provisions of the IRC. Also, small business expensing under IRC section 179 would be expanded.

In the past, many states have not conformed to federal accelerated depreciation rules, reasoning that accelerated depreciation (that is, depreciation that is faster than economic depreciation) represented a federal subsidy that the states might not want to adopt. One hundred percent expensing of the cost of property is the ultimate form of accelerated depreciation, and it is quite likely that some states would choose not to adopt it. This will certainly be a subject of discussion in state legislatures.

Related to the expensing provision are proposed limitations on deducting interest. If companies could buy expensed property with borrowed funds and deduct the interest paid to the lender, they would arguably be realizing some form of double benefit. The House Bill would disallow deductions for net interest expenses in excess of 30 percent of the business’s adjusted taxable income. The disallowance would be determined at the entity level, for example, at the partnership level rather than at the partner level. The disallowed interest would be carried forward to the succeeding five tax years, and special rules would be provided regarding owners of pass-through entities. The interest disallowance rules would not apply to specific regulated public utilities and real property businesses, and those businesses would not be able to fully expense their properties, reflecting the linkage between the interest disallowance rule and the expensing rule. Businesses with average gross receipts of $15 million or less would be exempt from the interest limitation rules.

The Senate Bill would limit the deduction of business interest to the sum of business interest income plus 30 percent of the taxpayer’s adjusted taxable income for the taxable year. Disallowed interest could be carried forward indefinitely. The limitation would not apply to taxpayers whose gross receipts did not exceed $15 million or to real estate or utility businesses.

It would be important that state legislatures keep the linkage between expensing and the interest deduction disallowance in mind. If a legislature chose not to adopt expensing, it should also not adopt the interest disallowance. One hopes that legislatures will be sophisticated enough to recognize the linkage and act accordingly.

The Bills would limit the use of net operating loss (NOL) deductions. Taxpayers would no longer be able to carry NOLs back to prior years, although there would be a special one-year carryback for small businesses and farms in case of specific casualty and disaster losses. NOL carryovers could be deducted only to the extent of 90 percent of the taxpayer’s taxable income. NOLs could be carried forward indefinitely, not just for 20 years. These rules would apply to losses arising in tax years beginning after 2017. NOLs arising in post-2017 years, and that are carried forward, would be increased by an interest factor so as to preserve their value. Many states have special NOL rules that depart from the federal rules and those states would have to decide how to coordinate their rules with the federal rules.

The House Bill would include in a corporation’s or partnership’s income contributions to its capital to the extent that the amount of money and the fair market value of property so contributed exceeded the fair market value of any interest in the entity that was issued in exchange. Capital contributions have often been used by state and local governments to subsidize desired economic activity. A state that adopted the federal rule would in effect be undermining its own economic development policies, and states should seriously consider not adopting the federal change. The Senate Bill does not contain a comparable provision.

The original draft of the House Bill would have made a major change in the treatment of deferred compensation that is not provided under nondiscriminatory plans that qualify under IRC section 401(a). Effective regarding services performed after 2017, employees would be taxed on compensation under nonqualified arrangements as soon as there was no substantial risk of forfeiture regarding the compensation, even though it might not be paid until many years in the future. A substantial risk of forfeiture would not be deemed to exist solely because of a covenant not to compete. This provision was deleted during the Ways and Means Committee’s mark-up and a similar provision was not included in the Senate Bill. Many companies include deferred compensation as a significant element of employee pay packages, and this practice would have to be reconsidered if the provision were resurrected. State legislatures might conclude that taxing a person on income before it is received is unfair, and it is possible that some states would decide to decouple from this provision.

Other changes in the Bills involve the taxation of compensation paid to high-earning individuals. Under present law, a corporation can generally not deduct compensation paid to an individual in excess of $1 million per year. The limit does not apply to specific performance-based pay, including stock options and commissions. The Bills would repeal the exception for performance-based compensation. The application of the provisions to existing awards is unclear. The provision, now in IRC section 162(m), does not make much sense economically because section 162(a) disallows deductions for compensation that is not reasonable in relation to the value of the services performed. Thus, section 162(m) applies only to compensation that is reasonable. Still, its expanded application is unlikely to be rejected by the states, since politically the compensation in question goes to highly paid individuals who are not high on the list of people that state legislatures want to protect.

A related change in both Bills would impose an excise tax on a tax-exempt organization equal to 20 percent of compensation in excess of $1 million paid to any of its five highest-paid employees. Again, this would apply to compensation that is reasonable in amount. As an excise tax, this would not automatically be incorporated in the laws of states that base taxable income on federal taxable income, but it would not be surprising to see some groups urge state legislatures to adopt similar provisions.

The Bills contain a number of provisions on the taxation of international business operations.

Both Bills would exempt from tax foreign-source dividends received from foreign subsidiaries in which a US taxpayer owned at least a 10 percent stock interest. This exemption would also apply to transfers from controlled foreign corporations of previously untaxed income that would be taxable under present law under IRC section 956. It is likely that the states would not decouple from this provision, although it is certainly possible that some states would decide that they don’t want to provide a similar exemption. One hopes that state legislatures will not depart from the federal regime because doing so would undermine national tax policy aimed at rationalizing the taxation of international business operations and increasing the country’s competitiveness in world markets.

The Bills would impose a transition tax on currently accumulated foreign earnings under a deemed repatriation model. Under the Senate Bill, the tax would be 12 percent on earnings considered as being held in the form of cash or cash equivalents and 5 percent on other earnings. Under the House Bill, the tax would be 14 percent and 7 percent respectively. There would be an anti-abuse rule designed to prevent manipulation of earnings and cash amounts. States might decide to impose their own transition tax to mirror the federal treatment.

The House Bill would impose a new 20 percent excise tax would be imposed on deductible payments (other than interest) by US taxpayers to related foreign parties (including, for example, most service fees, royalties and payments includable in cost of goods sold or depreciable or amortizable basis) unless the related party elected to treat the payment as income that is effectively connected to US business that would be subject to US income tax. Here, too, this liability would not automatically pass through to the states because it would not affect the computation of federal taxable income. The Senate Bill does not contain a comparable provision. One hopes that states will not jump aboard the bandwagon and impose their own excise taxes on the same transactions.

The Bills would limit the ability of a US taxpayer to deduct its net interest expenses if its share of its worldwide group’s net interest expenses was more than 110 percent of its share of the group’s earnings before certain deductions. This would be coordinated with the general 30 percent limit on deducting interest. This seems like an attempt to address the problems with which Treasury was concerned when it proposed debt-equity regulations under IRC section 385.

A minimum tax on foreign earnings in excess of routine earnings would be imposed at a 10 percent rate, subject to a reduced foreign tax credit. Here, too, states should resist the temptation to impose a similar additional tax.

The Bills contain a number of provisions affecting tax-exempt organizations. Current law imposes a tax on the income of exempt organizations that is unrelated to their exempt functions (the unrelated business income tax, or UBIT). Colleges and universities that are agencies or instrumentalities of state governments or their political subdivisions are subject to the UBIT, but it is unclear whether some other state and local entities such as public pension plans are subject to the tax. The bill would extend the tax to them.

Many states have their own UBITs and the states might choose to follow the federal extension. On the other hand, states might be reluctant to tax their pension plans and those of their political subdivisions, and state legislatures will have to decide how to address this issue.

Under current law, income from research performed for the United States or any state or political subdivision or by a college, university or hospital for any person is exempt from the UBIT. The House Bill would require as a condition of the exemption that the research be made available to the public at no charge. This would affect research done for the benefit of private parties that arguably would be used in connection with commercial activities. This represents a significant policy change, and states would have to decide whether to make similar changes to their UBITs.

Private charitable foundations are subject to a 2 percent excise tax on net investment income.

The tax can be reduced to 1 percent by making distributions equal to the average of their distributions for the previous five years plus 1 percent. The Bills would replace this regime by a single tax of 1.4 percent and the tax would not be reduced by distributions. Under current law, the tax does not apply to the investment income of public charities, including colleges and universities. The Bills would subject large private colleges and universities to a 1.4 percent excise tax on their net investment income. The tax would apply only to private colleges and universities that had at least 500 students and assets (other than those used directly in carrying out educational purposes) valued at the close of the preceding tax year of at least $500,000 per full-time student in the Senate Bill ($250,000 in the House Bill). This provision will undoubtedly be subject to extensive lobbying at the federal level. The size of the endowments of some leading universities has been publicized in recent years, and it is possible that some states might decide to impose a similar tax on their investment income.

As indicated above, the federal tax reform legislation is very much a work in progress, and its final form will be affected by political considerations and lobbying by interested parties. It will be important for SALT practitioners to monitor the progress of the legislation and to be in touch with state tax administrators and legislative bodies as appropriate.