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2020 WithumSmith+Brown, PC
Pending Legislation
• History
• President’s Green Book
• House Build Back Better (BBB) proposal on 9/13/2021
• Changes in response to Sens. Manchin/Sinema
• Various proposals (billionaire’s tax; corporate minimum profits tax, etc.)
• White House BBB framework on 10/28/2021
• House “managers amendment” to BBB on 11/3/2021
• House is expected to continue negotiating the “Build Back Better” plan this week
• Opposition expected in Senate from key Democratic Senators – changes are likely
• Legislative process could take weeks and passage this year is not guaranteed
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2020 WithumSmith+Brown, PC
What’s In It
• Tax provisions have been a moving target
• Most of the tax proposals have been eliminated
• Unclear what the final bill will contain
• Likely funds the IRS for taxpayer services ($2B), enforcement ($45B), operations support ($27B), and
business systems modernization ($5B)
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2020 WithumSmith+Brown, PC
Individual Provisions
• 5% surcharge for AGI over $10 million, and 3% surcharge over $25 million
• Top ordinary income tax rate would be 48.8% (37% + 3.8% NII + 5% surcharge + 3% surcharge)
• Expansion of SALT limit to $72,500 from 2021 to 2031
• Elimination of 75% and 100% exclusion percentages for Qualified Small Business Stock for taxpayers
with AGI over $400,000, retroactive to sales after 9/13/2021 (subject to binding contract exception)
• Addition of digital assets (i.e., cryptocurrency) to wash sale and constructive sale rules
• Addition of commodities and currencies to wash sale rule
• NIIT expected to include income from active trade or business for taxpayers with TI over $400,000
• Permanent extension (and elimination of thresholds) of EBL limits for non-corporate taxpayers
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Retirement Provisions
 Limitation on further contributions to IRAs/Roth IRAs for individual taxpayers with AGI ≥
$400K where the account balance would exceed or further exceed $10 million (effective
starting in 2029)
 Increase to RMDs for these large accounts, starting in 2029
 Elimination of back-door Roth conversions with after-tax funds after 2021
 Elimination of regular Roth conversions for IRAs and employer sponsored plans for
taxpayers with taxable income over $400K, starting in 2032
 15% prohibited transactions tax applies if an IRA holds a FSC or a DISC
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2020 WithumSmith+Brown, PC
Business Provisions
 15% minimum corporate tax on large corporations with 3-year average annual income over
$1 billion
 1% excise tax on stock repurchases of publicly-traded, U.S. companies
 Plaintiff’s attorneys can deduct out-of-pocket litigation costs relating to contingency-fee
cases in the year incurred rather than in the year the litigation concludes
 International tax reform, including interest expense disallowance and changes to FDII, GILTI,
BEAT, CFC, and FTC rules
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Eliminated Provisions
• No increase in top individual tax rate to 39.6%
• No increase in top corporate tax rate to 26.5%; no graduated tax rates
• No retroactive increase in top long-term capital gain/QDI rate to 25%
• No carried interest provisions
• No limitation on §199A QBI deduction
• No 2-year period for tax-free S corporation-to-partnership conversions
• No mark to market tax on unrealized capital gains
• No elimination of step-up in basis and no change to estate and gift tax lifetime exemption
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2020 WithumSmith+Brown, PC
General Year-End Tax Planning Ideas
General rule is to defer income and accelerate expenses – but consider rate surcharges for HNW
individuals
• How to Defer Income?
• Like-kind exchanges of real estate
• Invest capital gain in opportunity zones
• Rollover of QSBS gain
• Installment sales defers gain until payments are received
• Contribute to a 401(k) or SEP, and catch-up amount if 50 or older
• Contribute to an HSA (individual limit is $3,600, family limit is $7,200)
• If 55 or older, the catch-up contribution amount is $1,000
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General Year-End Tax Planning Ideas
How to Accelerate Expenses?
• Prepayments of rent, taxes, etc.
• Purchase equipment for §179 expense or bonus depreciation
• Pay in 2021 mortgage interest due in January 2022
• Pay passthrough entity tax before the end of the year to avoid SALT cap
• Pay in 2021 estimated state income tax payments due in early 2022
• But remember state taxes in excess of $10K are subject to the annual SALT cap
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2020 WithumSmith+Brown, PC
General Year-End Tax Planning Ideas
• How to Accelerate Expenses? (cont’d)
• Bunch itemized deductions so itemizing is preferable to the standard deduction (single $12,550/MFJ $25,100)
o Date and mail checks in 2021
o Use credit cards to make payments – promising to pay does not make expenses deductible, but paying with
borrowed funds works
o Contribute to a donor advised fund now, and allocate funds to charities later
o Double up on charitable contributions and pay every other year
o Accelerate medical expenses into 2021 so they exceed 7.5% of AGI
• Reevaluate reasonable compensation in S corporations (i.e., employment tax planning)
• Reevaluate officer compensation in C corporations (i.e., to reduce double taxation)
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Reasons to Accelerate Income
• 5% & 3% surcharges would apply in 2022
• NIIT expended to include income from active trade or business for taxpayers with taxable
income over $400,000
• Example: business owner considering selling business in 2021 for $100 million
• Top rate increasing from 37% to 48.8% (37% + 3.8% + 5% + 3%)
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Ideas to Accelerate Income
• Accelerate business income
• Elect out of bonus depreciation
• Trigger gain now instead of later (sales, exchanges, distributions from C corporation, etc.)
• Change accounting methods
• Don’t let the tax tail wag the planning dog – think in terms of accelerating something you would otherwise do, rather than doing something you would
not otherwise do
• Accelerate personal income
• Trigger long-term capital gain in 2021 rather than in 2022 or later
• Actual sales or constructive sales – e.g., short against the box; wash sale rules do not apply to gain
• IRA conversions (i.e., convert pre-tax retirement accounts to Roth (after-tax) accounts)
• Take a required minimum distribution (RMD) from an IRA/retirement plan
• Exercise stock options or make a §83(b) election on deferred compensation subject to restrictions
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“Savers” Credit
• American Rescue Plan Act (ARPA) created unique planning opportunities for households
with AGIs around $150,000
• Child Tax Credit: $3,600 children under 6 and $3,000 children 6 to 17
• Child Dependent Care Credit: $4,000 per child, max $8,000
• 2021 Recovery Rebate Credit: $1,400 per person
• Married couple with 2 kids could get over $20,000 in credits
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Basis/At-Risk/Passive Losses
• Taxpayers who experienced losses in 2021 may not be able to deduct them due to
basis/at-risk/passive loss limitations
• Consider year-end strategies for increasing basis to take losses
• Contributing funds or loaning money directly to S corporation
• Filing PPP2 loan forgiveness application to try and receive decision before year
end
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2020 WithumSmith+Brown, PC
Return of Excess Business Loss Limitations
• CARES Act temporarily suspended EBL limitation for 2018-2020
• 2021 threshold amounts increased to $262,000 ($524,000 MJF)
• EBL above these amounts are disallowed and carried forward
• Applies to active trade or business (different from passive loss rules)
• Current legislation would make this permanent and disallow any EBL for the taxable year
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2020 WithumSmith+Brown, PC
QBI Deduction Still Available
• QBI deduction is still available for 2021
• Proposed legislation does not include additional QBI limitations
• Unclear if ERC expense disallowance impacts wage limitation
• Year-end planning for bonuses to max QBI deduction for 2021
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NOL Changes
• CARES Act changed NOL rules: 2018, 2019 and 2020 NOLs may be carried back
five years and carried forward indefinitely
• 2021 NOLs are subject to the 80% of taxable income limitation and cannot be
carried back
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Other CARES Act Provisions
• PPP loan forgiveness is tax-free and expenses are deductible
• RRF & SVOG also tax-free/expenses deductible
• ERC – amount received is tax-free but reduces allowable expenses (states may not
conform)
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TCJA: GILTI
• Global Intangible Low-Taxed Income
• Review: What is GILTI?
• Income in excess of 10% return on Qualified Business Asset Investment
• Section 250 Deduction for C Corporations leads to an effective tax rate of 10.5% for C Corporations
• 80% Foreign Tax Credit
• Planning?
• Exclusion to exclude “High Taxed” Income from GILTI -- 18.9% effective tax rate in foreign country
• Section 962 Election for Individual U.S. Shareholders of Controlled Foreign Corporations – beneficial where a
foreign company is subject to a tax rate of at least 13.125%
• C Corporation Holding Company – restructuring must be completed prior to the taxpayer’s year-end including
the CFC’s year
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TCJA: FDII
Foreign Derived Intangible Income
• Review: What is FDII?
• Sale of goods or services for foreign customers; Income in excess of 10% return on Qualified Business
Asset Investment
• Designed to encourage on-shore development of Intellectual Property and other intangibles
• Can reduce effective tax rate from 21% to 13.125%
• Presumption of Foreign Use:
• Foreign Retail Sales
• Sales of general property delivered to a shipping address outside the U.S.
• Other sales of general property for which the billing address of the recipient is outside the U.S.
• Intangible property sales for which the billing address of the recipient is outside the U.S.
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2020 WithumSmith+Brown, PC
TCJA: FDII
Foreign Derived Intangible Income
• Planning? Companies with sales of good to and/or provision of services for non-U.S. users should review
their 2018, 2019 and 2020 tax returns to determine whether they can file an amended return to claim the
FDII Deduction, if not already claimed.
• Review purchase orders from those years to confirm all foreign sales were properly counted
• Determine if any sales to domestic parties are ACTUALLY going to be used outside the U.S. or further sold to non-
U.S. users
• Review allocation of expenses to determine if calculations made at the time of original filing properly
apportioned costs between domestic and foreign sales
• NOTE: The World Trade Organization may challenge the FDII deduction claiming it is an unfair subsidy
favoring U.S. corporations in violation of International Trade Law
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Tax Reform: GILTI & FDII
• Section 250 Deduction reduction from 50% to
• 31.75% for GILTI
• 21.875% for FDII
• Qualified Business Asset Investment reduced from 10% to 5%
• Used to determine Deemed Tangible Investment Return
• FDII-eligible income will increase
• GILTI income inclusion will also increase
• GILTI calculation on a Country-by-Country Basis
• Currently, calculation is done at the shareholder level
• Netting no longer available
• GILTI Tested Loss carryforwards will be allowed
• GILTI Foreign Tax Credit increased from 80% to 95% of properly allocable taxes
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Tax Reform: Foreign Tax Credits
• Country-by-Country application
• No longer able to cross credit taxes among different jurisdictions
• Repeal of the foreign tax credit carryback period
• Currently a 1-year carryback is allowed
• Carryforward period reduced from 10 years to 5 years
• Allow carryover for foreign taxes paid on GILTI
• Currently, GILTI FTCs must be used in the year of the GILTI income inclusion
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Taxation of the Digital Economy
• Who has the right to tax?
• How should profit be allocated?
• International Consensus
• Mechanism for resolving controversy
• Avoiding double taxation
• Example: Netflix
• Pillar 1 – Market/Consumer Presence Based Taxation
• Applies to companies with > 20 billion Euro in revenue
• Profit Margin > 10%
• 25% of profit reallocated to be taxed in jurisdictions where they have sales other than home country
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Global Minimum Tax
• 15% Tax Rate
• 136 Countries (4 OECD members yet to agree: Kenya, Nigeria, Pakistan, Sri Lanka)
• Proposed new rules to be implemented by 2023
• Pillar 2 – Worldwide Global Minimum Tax
• Global Minimum Tax companies > 750 million Euro in annual global sales
• Tax home country can “top up” taxes on applicable corporations to achieve a 15%
minimum effective tax rate
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Year-End Planning?
• What should you be asking yourself now?
• Do you sell goods or provide services outside of the U.S.?
• Have Tariffs Impacted you?
• Do you have the required Transfer Pricing Policies and Documentation for related-party transactions?
• Do you pay income taxes on income earned in a foreign jurisdiction?
• Have you relocated or been affected by a travel restriction due to measures implemented in response to
COVID-19
• Are you eligible for the foreign-earned income exclusion?
• Are you a beneficiary of a non-U.S. Trust?
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Withum Can Help!
• Businesses operate on a global scale irrespective of how large they are!
• Technology contributes to the accessibility of different locations, making our world smaller.
• Businesses operating in multiple countries and individuals with assets and income in multiple countries are
subject to increasingly complex regulations and reporting requirements.
• DO YOU HAVE THE SUPPORT YOU NEED TO ALLOW YOU TO FOCUS ON GROWING YOUR BUSINESS AND
ACHIEVING YOUR GOALS WHILE MAINTAINING A COMPETITIVE WORLD-WIDE EFFECTIVE TAX RATE?
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Current Estate and Gift Tax Law
 The 2017 TCJA doubled the Basis Exclusion Amount and GST exemption from 2018 – 2025 ($10 million in
2011 dollars)
ď‚· In 2021, the current Estate, Gift and GST Exemption is $11.7 million per individual ($23.4 million for married
couples)
ď‚· In 2026, the Estate, Gift and GST Exemption is set to go back to pre-TCJA law ($5 million in 2011 dollars)
ď‚· The Proposed Legislation is to accelerate the sunset to January 1, 2022 where the Estate, Gift and GST
Exemption would be projected to be $6 million
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Current Estate and Estate Tax Law
• The Proposed Legislation does not change:
• Estate and Gift Tax Rate of 40%
• Annual exclusion of $15,000 per donor ($30,000 for a married couple)
• Step-Up in Basis in Assets held at Death, Carryover in Basis for Gifts of Assets
• Portability of a Deceased Spouse’s Unused Exemption
• Annual Withdrawal Right (Crummey Powers) from Existing Non-Grantor Trusts
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Use the Gift and GST Exemption Now
ď‚· IRS issued final regulations in November 2019 which would not cause recapture of gifts made in excess of the
lifetime exemption at the time of an individual’s passing
• Example: An individual makes a gift of $11.7 million in 2021 and passes away in 2022 when the exemption is $6
million, the individual’s estate is not subject to estate tax on the $5.7 million excess gift
ď‚· Donors cannot use part of the $11.7 million exemption now and preserve the balance for later use
• Example: An individual makes a gift of $6 million in 2021 and passes away in 2022 when the exemption is $6
million, the individual’s estate has no remaining exemption
 If married, have one spouse make a large gift to utilize their $11.7 million exemption to get “at least one bite of the
apple”
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Use the Gift and GST Exemption Now
ď‚· Make large gifts to family members or trusts for their benefit in excess above the potential
exemption of $6 million in 2022
ď‚· Establish a Spousal Lifetime Access Trust (SLAT) before the enactment of the proposed
legislation
ď‚· Be careful of Reciprocal Trust Doctrine if Creating two SLATS for each spouse
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Grantor Trusts
• The Proposed Legislation would add new section 2901 which would cause grantor trusts to be included in the gross estate
of the grantor
• Distributions from grantor trusts to a beneficiary (other than the grantor or grantor’s spouse) during the life of the
grantor would be considered a gift at time of distribution
• Trusts converting to non-grantor trusts during the grantor’s lifetime would be considered at gift at the time of
conversion
• The Proposed Legislation would add new section 1062 which would cause transactions between grantor trusts and their
grantors to be recognized for income tax purposes
• Effectively eliminating the ability for individuals to implement Sales to Defective Grantor Trusts
• Proposal would eliminate the ability for the grantor to swap highly appreciated assets from grantor trust with cash or
other high-cost basis investments
• Proposed Legislation would only apply to trusts created on or after the date of enactment and to transfers to pre-existing
trusts on or after the date of enactment
• Proposals may cause inclusion of pre-existing Irrevocable Life Insurance Trusts (ILITs) if gifts are made after the date of
enactment of the proposal. Individuals may want to prefund these ILITs before date of enactment
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Valuation Rules
ď‚· Proposed Legislation would eliminate section 2031 to eliminate valuation adjustments for lack of
marketability and control for gifts of non-business assets after the date of enactment
• Non-business assets include any asset not used in the active conduct of a trade or business (i.e.,
marketable securities, passive real estate)
• Non-business assets do not include real property trades or business in which the donor materially
participates
• Consider establishing Family Limited Liability Companies with marketable securities and/or passive real
estate and make gifts prior to the date of enactment
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Incomplete Gift Non-Grantor Trust (ING)
1. Not a grantor trust
2. Not a completed gift
3. Exclude the grantor and grantors spouse, unless decided by an adverse party
4. Irrevocable
5. Distribution committee
6. Grantor retains a testamentary special (non-general) power of appointment §674(b)(3)
7. Grantor retains power to modify or revoke with an adverse person
8. In a non-income tax state
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2020 WithumSmith+Brown, PC
Specific Strategies – Now is the Time to Plan
• Interest rates are at historic all-time lows
• December 2021 §7520 rate is 1.6%
• December 2021 AFR –
• 0.33% short-term
• 1.26% mid-term
• 1.90% long-term
• Techniques to shift appreciation
• Sales to Defective Grantor Trusts
• Interfamily Loans – Loans to Family Members for use of their Gift Exemption
• Charitable Lead Annuity Trusts
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Freeze Values at Current Levels for Senior
Generation Clients
• Sale to an Intentionally Defective Grantor Trust (IDGT)
• The grantor creates a trust for the benefit of family members and sells assets to the trust in exchange for a long-
term installment note. The sale is made for fair market value per appraisals, etc. (including valuation discounts),
so that the sale by the grantor to the trust is not treated as a gift to the trust beneficiaries
• The trust is drafted to treat the grantor as the owner of the trust for income tax purposes, but not for estate tax
purposes. This is accomplished by including certain grantor-retained administrative powers in the trust
• The trust is intentionally “defective” so the grantor remains subject to income tax
• Sale of assets to the trust avoid capital gains tax; note interest in not subject to income tax
• Seed money gift requirement
• Have the grantor pay the income tax
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2020 WithumSmith+Brown, PC
Installment Sale To An IDGT
Overview Of Technique
Grantor IDGT
Gift & sale of highly
appreciating assets
Installment note(s)
Children,
Grandchildren Great
Grandchildren &
Future Generations
Discretionary
distributions of income
and principal during the
lifetime of the trust’s
beneficiaries
Assets outside
of the taxable
estates of
beneficiaries
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2020 WithumSmith+Brown, PC
Charitable Lead Trust (CLT)
• A Charitable Lead Trust is Essentially the Reverse of a Charitable Remainder Trust
• Two types for income tax purposes:
• Grantor – donor receives a current income tax charitable contribution deduction for the value of the
charity’s interest in the trust. All trust income and expenses recognized on donor’s individual income
tax return
• Charitable Deduction can be used to offset “net investment income” in a tax-efficient manner
• Non-Grantor – no charitable income tax deduction for the donor but trust is a separate tax paying
entity
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2020 WithumSmith+Brown, PC
Charitable Lead Trust (CLT)
Donor
(Income Beneficiary)
Transfer of cash, stock
and/or other assets
CLT
At the donor’s death (or at the
end of the trust term), the
remainder beneficiaries receive
the residual assets held in the
trust
Donor’s Children
(Remainder Beneficiary)
Annual (or more
frequent) payments for
life (or a term of years)
Public
Charity
(Income Beneficiary)
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2020 WithumSmith+Brown, PC
At a Glance…
• All states, plus D.C., have passed sales tax economic nexus standards.
• Five states don’t have a sales tax.
• An increasing number of services are becoming subject to sales tax.
• Although a taxpayer’s revenue stream may not be taxable in their home state, their sales into
other states may be subject to sales taxes.
• The term “Marketplace Facilitator” refers to companies that contract with third-party
“Marketplace Sellers” to promote their sale of physical property, digital goods, and services to
consumers through an online shopping portal maintained by the marketplace. (e.g., Amazon,
Ebay and Etsy)
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Wayfair has No Boundaries
Technology
Remote sellers
Retail
Media
Healthcare
Financial Services
Not-for-Profit
Private Equity
Manufacturing
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2020 WithumSmith+Brown, PC
Navigating a World Post-Wayfair
• Consider the Overall Business Implications
• Review and Consider Technology Needs
• Review Structure and Revenue Streams (e.g. Product/Service Mix)
• Filing Compliance and Initial Registration
• Monitor Tax Updates and Handle Tax Audits
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2020 WithumSmith+Brown, PC
Telecommuting
As Covid-19 continues to disrupt the global economy and transform workforces, a renewed
focus has put telecommuting at the forefront as businesses grapple with the state tax
implications
• Central issues put into focus:
• Income and Sales Tax Nexus
• Income Tax Apportionment
• State Payroll Withholding
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2020 WithumSmith+Brown, PC
Telecommuting Impact on Payroll Tax
• Payroll tax withholding involves deducting income and payroll taxes from employees’ compensation before
payment to employees.
• Employees may adjust income tax withheld from compensation by providing their employers with an employee withholding
certificate. The most common state tax withheld from compensation is income tax.
• Locations complicate withholding requirements.
• The state where an employee principally lives generally has primary taxation authority of the individual’s income. However,
for state taxes, withholding from employment income is typically based on where employees actually work.
• If an employee principally lives in one state but principally works in another, the employee is generally subject to withholding
rules of the principal work state. However, the employee could take a credit for taxes paid to the principal work state against
tax liability otherwise owed to the home state.
• Complications could arise when there are reciprocal agreements between the two states for withholding.
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P.L. 86-272 – Summary of the Law
• P.L. 86-272 says that a State may not impose a tax based on net income when a
taxpayer’s sole connection to the state is the solicitation for sale of tangible
personal property and the order is accepted and fulfilled outside of the state.
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MTC’s Current Restatement on P.L. 86-272
• The world has changed substantially since 86-272 was enacted in 1959. As
such, the MTC issued its current restatement on P.L. 86-272 indicating how the
law should apply in the internet age.
• Adopted on August 4, 2021, the purpose of the revision per the MTC was “to address
changes that have occurred during the past two decades in the economy and the way
that business is conducted.”
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Considerations of MTC’s Restatement
• Analyze impact of MTC revision statement.
• Monitor how states will adopt the new revised restatement.
• Taxpayers may challenge the MTC’s interpretation of protected and unprotected activities
under P.L. 86-272.
• Model impact and evaluate potential need for structure modifications.
• Apportionment implications.
• Consider impact in combined vs. separate reporting states.
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2020 WithumSmith+Brown, PC
Pass-Through Entity Taxes as a Growing
Trend for the States
• SALT Limitation: Before passage of the TCJA, individuals who itemized deductions could
deduct their state tax payments in full as Itemized Deductions, on their federal Form 1040,
U.S. Individual Income Tax Return. The TCJA put into place a $10,000 state and local tax
deduction limitation.
• SALT Workaround: In theory, the premise of the pass-through entity tax is straight-forward.
By imposing an income tax directly on the pass-through entity, which is not limited in the
amount of state taxes that it can deduct for federal purposes, a state's tax on pass-through
entity income now becomes a full deduction for the pass-through entity for federal income
tax purposes.
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2020 WithumSmith+Brown, PC
PTE Tax Risks and Considerations
• IRS Workaround Repeal: As 2020-75 was released under the Trump administration, it is possible the draft
regulation could be rescinded by the Biden administration.
• Nonresident Owners; Resident Credits: The resident state of a non-resident member may not allow a
resident credit on their individual returns for taxes paid at the entity level.
• May Require Significant State Presence: As the PTE will only pay tax on state connected income, the
benefit may be limited to the extent of presence in the state.
• Duplicate Estimate Payment Requirements: State legislation may not alter existing non-resident
withholding requirements for those PTEs that elect to pay the PTE. Therefore, overlapping payment
requirements may be necessary if individual non-resident taxpayers are subject to both regimes.
• Other Risks
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PTE’s Primary Features
• There are many features / characteristics of each states’ PTE tax. As such, it’s vital
these considerations are analyzed.
• Election (Mandatory/Elective/Revocable)
• Eligibility
• State Taxable Base
• Owner Income Offset
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PTE Action Items
• There are many features / characteristics of each states’ PTE tax. As such, it’s vital
these considerations are analyzed.
• Monitor states for legislation / guidance.
• Model out potential PTE savings in consideration of making the election.
• Consider any potential restructuring to potentially maximize benefits and minimize
risks.
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Today’s Presenters
Jeremias Ramos
CPA, Lead, National
Tax Services
212.829.3248
jramos@withum.com
Kimberlee Phelan
Partner, CPA, MBA,
Market Leader,
International Services
609.520.1188
kphelan@withum.com
Hal Terr
Partner, CPA, PFS,
CFP®, AEP®, Lead,
Private Client
Services
609.945.7946
hterr@withum.com
Daniel Mayo
Principal, JD, LLM,
National Lead, Federal
Tax Policy
973.532.8847
dmayo@withum.com
Jim Bartek
CPA, Market Leader,
State and Local Tax
Services
973.567.6515
jbartek@withum.com