There Are Some New Rules — and Situations — to Be Avoided

The Tax Cuts and Jobs Act

By Sean Wandrei

In December 2017, Congress passed H.R.1, better known as the Tax Cuts and Jobs Act. The act is the largest overhaul of the tax code since 1986. As with any new legislation, there are opportunities and pitfalls that one needs to be aware of when trying to take advantage of the new rules and avoid unwanted situations.

There are still many questions related to the act that the IRS will need to issue guidance on. There is a lot to unpack here, so let’s take a look at some items that businesses and individuals should be aware of.

The act reduces the corporate tax rate to a flat tax rate of 21%. This means the first dollar of taxable income is taxed at a 21% rate. This reduction could cause many owners of non-taxpaying entities (e.g. partnerships, limited liability companies, and S-corporations, also known as pass-through entities) to consider switching to a taxpaying entity (i.e. C-corporation). The maximum tax rate that the income of a pass-through entity could be taxed at is 37%.

Business owners could decide that their business should convert from a pass-through entity to a C-corporation based on this. While the reduction of the tax rate sounds great, there could be some issues that could increase the overall tax due if the entity is a C-corporation. If the owner(s) want to take money out of the C-corporation in the form of dividends, it will have to pay taxes on the dividends from the C-corporation at a maximum rate of 23.8% (20% tax on the dividend plus 3.8% net investment-income tax).

This is known as double taxation, which impacts only C-corporations and not pass-through entities. This could reduce or eliminate the overall tax savings of converting the entity to a C-corporation.

While taxes paid are usually a major factor on entity selection, there are some non-tax items to consider. Owners of C-corporations can receive tax-free employee benefits that pass-through entities are not entitled to. Another tax-savings option that was available prior to the act is the exclusions of the gain on the sale of qualified small-business stock (QSBS) under Code Section 1202. This provision was amended in 2010, allowing QSBS acquired after Sept. 27, 2010 to be eligible to exclude the total gain on the sale.  There are a few rules that have to be met to allow for the 100% exclusion. Section 1202 is available only for C-corporations. This means that, when the owner decides to sell his or her stock, the gain from the sale of that stock would be tax-free. The reduced tax rate and non-tax benefits could make C-corporations more attractive to some.

C-corporations are not the only business entities that received a tax break from the act. Pass-through entities are able to take a deduction of 20% on the qualified business income (QBI) earned from the business. Individuals who are sole proprietor and file a Schedule C and individuals with rental activity reported on Schedule E also qualify for this deduction.

On the surface, this deduction seems to be straightforward, but there is a lot to this deduction. Not all businesses qualify, and the deduction could be limited. QBI can be thought of as ordinary income from the business. The catch is that the deduction is limited to the lesser of 20% of QBI or 50% of the total W-2 wages paid by the business. So wages need to be paid to be able to take this deduction.

The 50% of W-2 wages does not apply if the owner’s taxable income is below $315,000 for married filing jointly (MFJ) and $157,500 for other taxpayers. This deduction may not be available to a specified service trade or business (SSTB). A SSTB is a business involving service in many fields, including law, accounting, consulting, and financial services. Engineers and architects were excluded from the definition of SSTB in a last-minute change. If the owner’s taxable income is below $315,000 for MFJ and $157,500 for other taxpayers, the SSTB limitation does not apply.  

The planning that comes into play for this deduction is based on the entity type. QBI does not include reasonable compensation paid by an S-corporation to the owner(s). Similarly, QBI does not include amounts paid as guaranteed payments by a partnership to the owner(s).

Based on this, if the pass-through entity is an S-corporation, reasonable wages are going to be deducted from the QBI, which will reduce QBI and the deduction. A partnership and sole proprietor are not required to take guaranteed payments, so the QBI could be larger for a partnership than an S-corporation based on this. If the taxable income is below the limits mentioned above, the 50% of W-2 wages option does not come into play, and the larger deduction will be had by the partnership and sole proprietor.

If the 50% of W-2 wages comes into play, then the S-corporation will have to pay W-2 wages, and the partnership will have to pay guaranteed payments to owners or wages to non-owners to be able to take this deduction. With this in mind, the owner’s taxable income will need to be monitored.

For individuals, the elimination of exemptions and the doubling of the standard deduction will cause more taxpayers to take the standard deduction instead of itemizing. It is said that only 10% of the population will itemize in 2018 compared to 30% in 2017. If you fall into the 10% of people who itemize, you may have heard that one of the biggest deductions, state and local taxes, is limited to $10,000 per return.

This is the case if you are single or filing as MFJ; the deduction is limited to $10,000. The marriage penalty is back. If the MFJ couple was not married and filed as single taxpayers, then they each would be able to deduct up to $10,000 in state and local taxes.

In the past, the interest from a home-equity loan was deductible. The proceeds from the home-equity loan could have been used for anything. Now the interest from a home-equity loan is no longer deductible unless it is used to buy, build, or substantially improve the taxpayer’s home that secures the loan. Prior to the act, employees were able to deduct unreimbursed business expenses related to their job. This is no longer the case.

As you can see, the act has provided many new things to consider when it comes to taxes. Now, more than ever, your CPA will be counted on to help with tax planning.

Sean Wandrei is a lecturer in Taxation at the Isenberg School of Management at UMass Amherst. He also practices at a local CPA firm; [email protected]