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The Tax Cuts and Jobs Act has now passed, which enacts the biggest tax reform law in thirty years. Citrin Cooperman's Federal Tax Policy Team recently hosted a webinar discussing what you need to know to begin planning and steps you can be taking to be prepared. The conversation focused on the following key areas:

Pass-Through Entities
State and Local Implications

Published in: Business
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  4. 4. BUSINESS Presented by: Allison Brack and Michael Kline
  5. 5. GENERAL BUSINESS PROVISIONS Limitation of Business Interest Deduction: • Business interest expense limited to: o Business interest income plus 30% of adjusted taxable income for the year and o Floor financing interest of the taxpayer • Adjusted taxable income is taxable income excluding: o Any income, gain, deduction or loss that is not allocable to a trade or business, o Business interest income and interest deduction o NOL deduction o 20% pass-through deduction or o For years before January 1, 2022, depreciation, amortization and depletion • Small business exception o $25 million gross receipts o Attribution rules apply • Carryforward period of disallowed interest is unlimited 5
  6. 6. GENERAL BUSINESS PROVISIONS • Pass-Through Entities o Applied at entity level o Carryforwards allocated to owners • Real estate trade or business opt out o Irrevocable election o Change in depreciable lives o Bonus depreciation no longer available • Things to consider….. o Make election year after purchase of large real estate asset o Entities with real estate and non real estate activities • Can they opt out entirely or a portion? o Does opt out election affect existing assets being depreciated? 6
  7. 7. DEPRECIATION CHANGES Section 179 • Effective for tax years beginning after December 31, 2017 • Increased from $510,000 to $1,000,000 • Phase out increased from $2,030,000 to $2,500,000 • Maximum deduction of $25,000 for sport utility vehicles • Qualified real property is expanded to include roofs, HVAC property, fire protection, and alarm and security systems. 7
  8. 8. DEPRECIATION CHANGES Bonus Depreciation For qualifying assets placed in service after September 27, 2017 and before January 1, 2023: • 100% first year deduction for assets with depreciable life of 20 years or less • Assets can be new or used • Cannot be taken if ADS depreciation is used • Transition rule: Can continue to use 50% for assets placed in service for the first tax year ending after September 27, 2017 8
  9. 9. DEPRECIATION CHANGES Things to consider……………. Bonus vs Section 179 • State differences • Trade or business income limitation – section 179 • No limitation on bonus depreciation • Neither one has AMT adjustment • Bonus must be taken on a whole class of assets • Qualified Real Property qualifies for Section 179 9
  10. 10. DEPRECIATION CHANGES Qualified Improvement Property (“QIP”) • Elimination of reference to qualified leasehold improvement property, qualified restaurant property and qualified retail improvement property • QIP needs to meet two requirements: o Made to the interior portion of a non-residential building o Placed in service after the date the building is placed in service • Depreciable life is uncertain • Ability to take bonus depreciation depends on depreciable life 10
  11. 11. GENERAL BUSINESS PROVISIONS • Increased gross receipts threshold to $25 million o Cash method of accounting o Accounting for inventories o UNICAP o Accounting for small construction contracts • Like-Kind Exchange limitation • Employer Deduction for Fringe Benefit Expenses limitations • Exclusion of Entertainment Expense deduction 11
  12. 12. CORPORATE Presented by: John Genz
  13. 13. CHANGES TO CORPORATE TAXES • Corporate tax rates reduced o Corporate tax rate would generally be a flat 21% rate for tax years beginning in 2018 o Some of the larger firms are advising fiscal year filers to prorate the corporate rate for before and after 1/1/2018 o The 21% tax rate also applies to Personal Service Corporations • Dividends received deduction percentages reduced o If the corporation owned at least 20% of the stock of another corporation, an 80% dividends received deduction was allowed. • For tax years beginning after Dec. 31, 2017, the 80% dividends received deduction is reduced to 65% o If the corporation owned less than 20% of the stock of another corporation, a 70% dividends received deduction was allowed. • For tax years beginning after Dec. 31, 2017, the 70% dividends received deduction is reduced to 50%. 13
  14. 14. CHANGES TO CORPORATE TAXES • Corporate Alternative Minimum Tax (“AMT”) repealed o Under the old law, the corporate AMT was 20% with an exemption amount of $40,000, that commenced phasing out at $150,000 of alternative minimum taxable income. Certain smaller businesses were exempt from the AMT. o For tax years beginning after 2017, the AMT is repealed o However, a prior AMT credit is refundable and can offset regular tax liability in an amount equal to: • 50% of the excess of the minimum tax credit for the tax year over the amount of the credit allowable for the year against regular tax liability o This increases to 100% for 2021 14
  15. 15. CHANGES TO CORPORATE TAXES • Modification of Net Operating Loss (“NOL”) Deduction o For tax years ending on or before 12/31/2017, a NOL may generally be carried back two years and carried over 20 years to offset taxable income with no 80% limitation • There was an exception for carryback provisions of specified liability losses and some casualty and disaster losses o For tax years beginning before 12/31/2017, but ending after 12/31/2017 • The two year carryback and the exception for special carryback provisions are repealed • NOLs can be carried forward indefinitely o For tax years beginning after 12/31/2017 • The NOL deduction is limited to 80% of taxable income • The two year carryback and the exception for special carryback provisions are repealed • NOLs can be carried forward indefinitely o The two year carryback will continue to apply in the case of certain losses incurred in the trade or business of farming o Property and casualty insurance companies can carryback NOL two years and carryover 20 years • The 80% limitation does not apply to property and casualty insurance companies 15
  16. 16. CHANGES TO CORPORATE TAXES • Repeal of Domestic Production Activities Deduction (Section 199) o Under the old law, taxpayers generally could claim a domestic production activities deduction equal to 9% of the lesser of the taxpayer’s qualified production activities income, or the taxpayer’s taxable income for the tax year for property that was manufactured, produced, grown, or extracted within the U.S. o The domestic production activities deduction is repealed for tax years beginning after December 31, 2017 16
  17. 17. CHANGES TO CORPORATE TAXES • Five-year write-off of Research & Experimentation (“R&E”) expenses o Under the old law: • Taxpayers could elect to currently deduct R&E • Forgo a current deduction and amortize over the useful life of the research, but not less than 60 months; • Or elect to recover them over 10 years o For taxable years beginning after 2021, specified R&E expenses are required to be capitalized and amortized over a 5-year period beginning with the midpoint of the tax year in which the specified R&E expenses were paid or incurred • 15 years in the case of expenditures attributable to research conducted outside the U.S. • Specified R&E expenses subject to capitalization include expenses for software development, but not expenses for land or for depreciable or depletable property used in connection with the research or experimentation • Also excluded are exploration expenses incurred for ore or other minerals (including oil and gas) • In the case of retired, abandoned, or disposed R&E property, any remaining basis must continue to be amortized over the remaining life o Prior to 2026, use of this provision is treated as a change in the taxpayer’s accounting method o R&E credit survives 17
  18. 18. CHANGES TO CORPORATE TAXES • Limitation of Excessive Employee Compensation o Under the old law, publicly held corporations were limited to no more than $1 million per year. However, exceptions applied for: • commissions; • performance-based remuneration, including stock options; • payments to a tax-qualified retirement plan; and • amounts that are excludible from the executive’s gross income o For tax years beginning after Dec. 31, 2017 • The exceptions to the $1 million deduction limitation for commissions and performance- based compensation are repealed; • The definition of covered employee is revised to include the principal executive officer, the principal financial officer, and the three other highest-paid officers and; • If an individual is a covered employee for a tax year beginning after December 31, 2016, the individual remains a covered employee for all future years o These changes do not apply to any remuneration under certain written binding contracts which were in effect on Nov. 2, 2017, and which was not materially modified after that date 18
  19. 19. CHANGES TO CORPORATE TAXES • Impact on Financial Reporting (ASC-740) o The effect of a change in tax laws or rates must be recognized at the date of enactment, December 22, 2017 • Deferred tax assets and liabilities must be adjusted for the effect of the change in tax laws or rates and such change may also require a reevaluation of a valuation allowance for deferred tax assets • The effect must be included in income from continuing operations, including items of deferred tax that were originally accounted for in other comprehensive income, for the period that includes the enactment date o Since the change was enacted in 2017, an entity with a calendar year-end is required to recognize the effect in its 2017 financial statements o A fiscal year-end company must recognize the effect as a discrete item in the interim period of the enactment and must not apportion among interim periods remaining in the current fiscal year through an adjustment of the annual effective rate • Companies with deferred tax assets will recognize income tax expense, and companies with deferred tax liabilities will recognize income tax benefit • The significant components of income tax expense attributable to continuing operations for each year presented, including adjustments of a deferred liability or asset for enacted changes in tax laws or rates, must be disclosed in the financial statements or footnote disclosure o The Securities and Exchange Commission published Staff Accounting Bulletin No. 118 (SAB 118) for publicly traded companies to ensure timely public disclosures of the accounting impacts of the legislation. • In SAB 118, the staff addressed certain fact patterns where the accounting for such change is incomplete upon issuance of an entity’s financial statements for the reporting period of enactment 19
  20. 20. PASS-THROUGH ENTITIES Presented by: Matthew Bonney and Andrew Rotter
  21. 21. SECTION 199A Qualified Business Income Defined: The term ‘qualified business income’ means, for any taxable year, the net amount of qualified items of income, gain, deduction, and loss with respect to any qualified trade or business of the taxpayer. Such term shall not include any qualified REIT dividends, qualified cooperative dividends, or qualified publicly traded partnership income. The term ‘qualified items of income, gain, deduction, and loss’ means items of income, gain, deduction, and loss to the extent such items are effectively connected with the conduct of a trade or business within the United States. **Qualified Business Income does not include guaranteed payments or reasonable S Corporation compensation. 21
  22. 22. WHAT ARE THE MECHANICS OF THE DEDUCTION? In the case of a taxpayer other than a corporation, there shall be allowed as a deduction for any taxable year an amount equal to the sum of— ‘‘(1) the lesser of— ‘‘(A) the combined qualified business income (defined below) amount of the taxpayer, or ‘‘(B) an amount equal to 20 percent of the excess (if any) of— ‘‘(i) the taxable income of the taxpayer for the taxable year, over ‘‘(ii) the sum of any net capital gain (as defined in section 1(h)), plus the aggregate amount of the qualified cooperative dividends, of the taxpayer for the tax- able year, plus ‘‘(2) the lesser of— ‘‘(A) 20 percent of the aggregate amount of the qualified cooperative dividends of the taxpayer for the taxable year, or ‘‘(B) taxable income (reduced by the net capital gain) of the taxpayer for the taxable year. 22
  23. 23. COMBINED QUALIFIED BUINESS INCOME Combined qualified business income is computed as follows: 1. The SUM OF The LESSOR OF: a. 20% of the taxpayers “qualified business income (defined below)” OR 2. The GREATER OF: (alternative analysis involved when income is above various thresholds) a. 50% of the W-2 wages with respect to the business, OR b. 25% of the W-2 wages with respect to the business PLUS 2.5% of the unadjusted basis of all qualified property 2. PLUS the LESSOR OF: a. 20% of qualified cooperative dividends, OR b. Taxable income less net capital gain The 20% deduction has limitations and phase outs and gets more complex when the taxable income is greater than $315,000 but less than $415,000 when MFJ, and more than $157,500 but less than $207,500 for all other taxpayers. 23
  24. 24. WHICH TAXPAYERS QUALIFY FOR THE DEDUCTION? There is little guidance available as to which industries qualify. However, the following specified services will not qualify if income exceeds certain thresholds: • Health, law, accounting, actuarial science, performing arts, consulting, athletics, financial services, brokerage services, or • Any trade or business where the principal asset of such trade or business is the reputation or skill of one or more of its employees or owners (this potentially can limit many other service businesses). The following business entities should qualify for the deduction: • Real Estate (potential issues with net lease entities) • Manufacturers 24
  25. 25. INTERNATIONAL Presented by: Paul Dailey and Jennifer Sklar-Romano
  26. 26. INTERNATIONAL TAX REFORM PROVISIONS • Modified Territorial Tax Regime o Adoption of dividend participation exemption system o U.S. corporate shareholders of specified foreign corporations (SFC) allowed a full deduction against the foreign-source portion of dividends received • 100% dividends received deduction (DRD) • SFC = 10%-owned foreign corporation (not including a PFIC that is not a CFC) • Applies only to C corporations • Individual and pass-through shareholders continue to be subject to the existing world-wide tax regime o U.S. shareholder must hold the stock of the SFC for more than 1 year o Foreign tax credits disallowed for any dividend to which the DRD applies o Subpart F and Section 956 investment in U.S. property rules continue to apply to certain CFC shareholders o Exception for hybrid dividends • Hybrid dividend = amount received from a CFC for which the CFC received a tax deduction or other tax benefit 26
  27. 27. INTERNATIONAL TAX REFORM PROVISIONS • Mandatory Repatriation Tax o One-time toll tax on undistributed nonpreviously taxed foreign earnings and profits (E&P) o Pre-2018 accumulated deferred E&P MUST be included as Subpart F income o Income inclusion for 2017 tax year • Absent current IRS guidance, payment due with extension o Toll tax applies to ALL U.S. shareholders of a SFC that is also a deferred foreign income corporation (DFIC) • In contrast to the DRD, which is available only to corporate U.S. shareholders, the toll tax applies to all U.S. shareholders, including individuals, partnerships/LLCs, S corporations and trusts • Deferral allowed for S corporations until a triggering event occurs • U.S. shareholder = U.S. person owning 10% of the vote of a DFIC • DFIC = any SFC of a U.S. shareholder that has accumulated post-1986 deferred foreign income greater than zero 27
  28. 28. INTERNATIONAL TAX REFORM PROVISIONS • Mandatory Repatriation Tax (con’t) o E&P measurement date greater of E&P on Nov. 2, 2017 or Dec. 31, 2017 • Accruals after November 2 will not be taken into account in computation of E&P – e.g., foreign taxes accrue at year-end, so they will reduce E&P only at December 31 measurement date o Allocation of E&P deficits permitted • E&P deficits of SFCs are allocated pro rata among the DFICs based upon the ratio of each DFIC’s positive E&P over total positive E&P • Allocation will impact which DFIC’s deemed paid foreign tax credits may be used to offset the toll tax o Payment is due over 8 years • No interest • 8% for first 5 years, then 15%, 20% and 25% for years 6 through 8, respectively 28
  29. 29. INTERNATIONAL TAX REFORM PROVISIONS • Mandatory Repatriation Tax (con’t) o Tax Rates • Corporations - 15.5% on cash/cash equivalents and 8% on noncash assets • Individuals- 17.54% on cash/cash equivalents and 9.05% on noncash assets o 3.8% Net Investment Income Tax (NIIT) applies for actual distributions • Not subject to 8 year pay-out o May elect to be taxed at corporate rates on Subpart F income inclusion • Foreign cash position includes aggregate cash positions of all SFCs, not just DFICs o Fiscal year CFCs could possibly get a one-year break (Prop. Reg. §1.898-1(c)(1)) o Taxpayers can elect to preserve NOLs o Disallowance for specific portion of foreign tax credit (FTC) • Disallowed FTC rate of 55.7% to 77.1% based upon U.S. shareholder’s ratio of the aggregate foreign cash position to the total Subpart F inclusion o State tax ramifications? • No current state guidance allowing 8 year pay-out 29
  30. 30. INTERNATIONAL TAX REFORM PROVISIONS • Modifications to Subpart F anti-deferral regime o Expansion of U.S. Shareholder definition to include value as well as vote o Downward attribution from foreign persons to related U.S. persons o Repeal of 30-day minimum holding period • Global Intangible Low-Taxed Income (GILTI) o Applies to U.S. shareholders of CFCs o Treated as Subpart F income o Refers to shareholder’s net CFC tested income over shareholder’s net deemed tangible income return o 80% deemed paid foreign tax credit is available o Separate foreign tax credit basket applies o U.S. corporate shareholders allowed a deduction for 37.5% of its foreign-derived intangible income and 50% of its GILTI 30
  31. 31. INTERNATIONAL TAX REFORM PROVISIONS • Base Erosion Anti-Abuse Tax (BEAT) o Aimed at preventing companies from stripping out U.S. earnings via deductible payments to foreign affiliates o Applies to C corporations with average annual gross receipts of at least $500,000,000 for the three preceding tax years and a “base erosion percentage” of at least 3% o BEAT is equivalent to the excess of 10% ( 5% for 2018) of “modified taxable income” (generally, regular taxable income plus the base eroding payments such as interest and royalties) over its regular tax liability as reduced by credits • Sale of partnership interest by U.S. non-residents o Rev. Rul. 91-32 position codified in response to taxpayer-friendly Tax Court decision in Grecian Mining case (currently under Appeal by the IRS) o Nonresidents selling an interest in a U.S. partnership will be taxable on the gain as deemed attributable to ECI o Hypothetical sale mandated as if the U.S. partnership sold all of its assets • 10% WHT imposed on gross proceeds o FIRPTA rules continue to apply to gain from the sale of real estate held by a U.S. partnership o Effective for sales after Nov. 26, 2017, however, WHT requirement only applies to dispositions after Dec.31, 2017 31
  32. 32. INTERNATIONAL TAX REFORM PROVISIONS • Planning Considerations o Conversion to C corporations for DRD eligibility o Incorporation of foreign branches o Restructuring to avoid applicability of Subpart F regime (e.g., check-the-box planning) o Leveraged blocker structures 32
  33. 33. INDIVIDUALS Presented by: Ron Hegt
  34. 34. TAX RATE CHANGES Pre-Reform 2018 Pre Change Tax Rate Tables Post Reform 2018 Tax Rate Tables Rate Single Married Rate Single Married 10% $0-$9,325 $0-$18,650 10% $0-$9,525 $0-$19,050 15% $9,326- $37,950 $18,651- $75,900 12% $9,526- $38,700 $19,051- $77,400 25% $37,950- $91,900 $75,901- $153,100 22% $38,701- $82,500 $77,401- $165,000 28% $91,900- $191,650 $153,101- $233,350 24% $82,501- $157,500 $165,001- $315,000 33% $191,651- $416,700 $233,351- $416,700 32% $157,501- $200,000 $315,001- $400,000 35% $416,701- $418,400 $416,700- $470,700 35% $200,001- $500,000 $400,000- $600,000 39.6% $418,401-up $470,700-up 37% $500,000 up $600,000-up 34
  35. 35. IMPACT ON NYS RESIDENT AT VARIOUS INCOME LEVELS Income Level Federal Tax (decrease) 400,000 (19,000) 500,000 (18,000) 750,000 (4,000) 1,000,000 (5,000) 2,000,000 (16,000) 3,000,000 (4,000) Assumes $10,000 of dividends, $40,000 Real Estate Tax, Two Children 35
  36. 36. IMPACT ON NYC RESIDENT AT VARIOUS INCOME LEVELS Income Level Federal Tax (decrease)/increase 400,000 (19,000) 500,000 (18,000) 750,000 2,000 1,000,000 9,000 2,000,000 13,000 3,000,000 40,000 Assumes $10,000 of dividends, $40,000 Real Estate Tax, Two Children 36
  37. 37. THINGS THAT ARE GONE • Personal Exemptions • State and Local Income and Property Tax-$10,000 exception • Miscellaneous Itemized Deductions o Tax Preparation Fees o Investment Advisory Fees o Employee Business Expenses o Moving Expenses o Entertainment Expenses (not Meals) • Personal Casualty Losses • Moving Expenses • Shared Responsibility Payment (2019) • Alimony Taxability and Deduction (2019 Agreements) • Gambling expenses in excess of net winnings 37
  38. 38. THINGS THAT HAVE CHANGED • Interest Expense o Mortgages • Home Mortgages In Existence on December 15, 2017—no changes • Post 12/15/17 home acquisition interest deduction limited to principal amounts of $750,000. Second homes continue to qualify. • Refinances post 12/15/17 grandfathered at $1 million ONLY up to debt level at date of refinance. (No cashing out of equity). o Home Equity Line of Credit • Interest allowed on HELOC only to extent proceeds were used to acquire, construct or substantially renovate property. • EXAMPLE-$200,000 HELOC used in 2016 to buy $100,000 car and $100,000 to repair and replace roof on home. In 2018 interest on roof repair only deductible. 38
  39. 39. THINGS THAT HAVE CHANGED • Medical Expenses deductible to extent they exceed 7.5% of Adjusted Gross Income, down from 10%. • Charitable Contributions to Public charities limit increased from 50% of AGI to 60% of AGI • Standard Deduction almost doubled to $24,000 for married couple. o Timing of Deductions • Child Credit Increased to $2,000 per child and $500 per non child dependent o Credit fully available until AGI reaches $400,000. ($200,000 single). o Up to $1,400 refundable if tax liability is zero. • Stock Option Income recognition from grants by private companies can be deferred for five years • Business losses limited to $500,000 per year. Any excess carried forward as Net Operating Loss. • Net Operating Losses cannot be carried back. Can be carried forward indefinitely o Use of losses limited to 80% of taxable income for post 2017 losses. 39
  40. 40. ALTERNATIVE MINIMUM TAX • An alternative tax system that disallows many deductions and taxes income at a lower rate (For 2017: 28% vs 39.6%). • Taxpayer pays the higher of the two computations. • Currently (2017 and prior) the largest disallowed expenses for AMT are state and local income and real estate taxes and miscellaneous itemized deductions. 40
  41. 41. ALTERNATIVE MINIMUM TAX – 2018 VERSION • For 2018 28% vs 37% • AMT exemption increased • With state and local taxes and miscellaneous itemized deductions repealed, the largest cause of AMT eliminated • Anticipation is that many who were hit with AMT in the past will no longer be so. 41
  42. 42. STATE AND LOCAL Presented by: Eugene Ruvere
  43. 43. STATE AND LOCAL IMPLICATIONS • State conformity, or lack thereof, with Internal Revenue Code o Rolling conformity o Static conformity o Selective conformity • Above the line and below the line changes o Starting point for state taxable income generally federal taxable income (“FTI”) o Federal tax law changes that impact calculation of FTI may impact state taxable income o But there may be modifications to get from FTI to state taxable income • Mechanical but wait-and-see on decoupling/conformity actions 43
  44. 44. STATE AND LOCAL IMPLICATIONS The SALT Deduction Issue and Residency Planning • Assuming no successful end run for the states (e.g., through creating charitable deduction in lieu of state tax payment) • Increase in desire to move to low/no tax states like FL, NV, or the very tempting SD • General residency rules – it’s not just about 183 days 44
  45. 45. STATE AND LOCAL IMPLICATIONS • Domicile – five factors o Home o Active business involvement o Time spent o Items near and dear o Family connections • Statutory residency o Abode for substantially all of the year o More than 183 days (generally any part of a day) 45
  46. 46. STATE AND LOCAL IMPLICATIONS • Income sourcing o Residency change benefit is generally just for: • capital gains • interest • dividends o Flow-through income – typically won’t change with a residency change • Planning o Residency change generally requires a life change o Flow-through entity planning • Apportionment methodologies • Income shifting/special function entities 46
  47. 47. CONTACT US JOHN GENZ (347) 505-6308 MATTHEW BONNEY (646) 695-7899 ANDREW ROTTER (646) 695-7831 PAUL DAILEY (347) 505-6357 JENNIFER SKLAR-ROMANO (646) 979-3954 RON HEGT (914) 358-3342 EUGENE RUVERE (914) 949-2990 JOE BUBLÈ (646) 695-7876 ALLISON BRACK (646) 695-7878 MICHAEL KLINE (267) 479-0138 47
  48. 48. THANK YOU