The Bracewell Tax Report is a periodic publication focused on developments in federal income tax law, including the recently enacted Tax Cuts and Jobs Act, with emphasis on how such developments impact the energy, technology and finance industries. The publication provides summaries of changes in tax law and its interpretation, as well as related practical guidance critical to making strategic business decisions and negotiating transactions.

Week of September 17

Featured Articles

• Proposed Regulations on the 20% Deduction for Qualified Business Income Provide Helpful Guidance for the Energy Industry
• IRS Issues Proposed Regulations Providing Clarity for REIT Investors
• House Republicans Seek to Lock In, Expand Tax Cuts With "2.0"
• Additional Reading

Featured Articles

Proposed Regulations on the 20% Deduction for Qualified Business Income Provide Helpful Guidance for the Energy Industry

By Liz McGinley and Steven Lorch

On August 8, 2018, the IRS and Treasury Department released proposed regulations (the Proposed Regulations) providing guidance on the deduction equal to 20% of an individual’s qualified business income (QBI). As discussed here in greater detail, pursuant to Section 199A of the Internal Revenue Code (the Code), which was enacted by the Tax Cuts and Jobs Act (TCJA), QBI generally is domestic business income earned by individuals, either directly or indirectly through pass-through entities, including partnerships and entities treated as partnerships for federal income tax purposes, such as LLCs, and S-corporations. The QBI deduction, coupled with the reduction in the maximum individual federal income tax rate from 39.6% to 37%¹,  represents a substantial reduction in the effective federal income tax rate applicable to an individual’s non-corporate business income.

The purpose of the Proposed Regulations is to provide taxpayers with computational, definitional and anti-avoidance guidance regarding the QBI deduction. The Proposed Regulations provide helpful, practical guidance on a number of important topics with respect to which taxpayers and practitioners have sought clarification, including certain aspects of the QBI calculation and certain limitations on taxpayers’ ability to claim the QBI deduction. The Proposed Regulations are subject to change before they are issued in final form, but individual taxpayers are likely to view the Proposed Regulations as a strong indication of the IRS’s and the Treasury Department’s approach to the final regulations and as reliable guidance for tax planning and estimation of their 2018 income tax liability.

The Proposed Regulations provide clarification on several technical aspects of the QBI calculation. As expected, the Proposed Regulations require that individuals must reduce positive QBI with net losses generated by other eligible businesses before applying the QBI deduction. Such a netting requirement will prevent taxpayers from segregating activities that produce losses, such as drilling activities with significant IDCs, from activities that earn taxable income and, standing alone, would permit a QBI deduction. In addition, the Proposed Regulations require that any net deficit in QBI for a taxable year must be carried forward and used to offset QBI for future years, which may prevent owners of energy companies with large project development costs yielding net losses from obtaining any benefit under the QBI deduction until a project’s later years.

For purposes of calculating the QBI deduction, QBI includes items of income, gain, deduction and loss to the extent such items are effectively connected with the conduct of a trade or business in the United States and included in determining taxable income for the year. QBI, however, does not include short-term or long-term capital gain or loss. The Proposed Regulation clarify that, to the extent Code Section 751 treats gain attributable to certain assets of a partnership, including unrealized receivables, which includes depreciation recapture, as ordinary income, such gain will qualify as QBI. Accordingly, if a partnership with significant investments in depreciable property sells such property at a gain, such gain, to the extent it does not exceed the depreciation taken with respect to such property, would be includable in QBI and therefore would increase the available QBI deduction. 

Further, the Proposed Regulations clarify that, although a partner or owner’s share of deductible losses of a pass-through entity generally reduces the tax basis in the partner or owner’s equity, the QBI deduction has no effect on the tax basis of a partner’s interest in the partnership or the tax basis of a shareholder’s stock in an S-corporation.

The Proposed Regulations also provide guidance on two limitations on an individual’s capacity to claim the QBI deduction, both of which apply if an individual’s taxable income for a given year exceeds a statutory threshold (the Threshold). ²  The first limitation eliminates the QBI deduction for any specified service trade or business (SSTB). The Proposed Regulations confirm the categories of businesses that are classified as SSTBs, such as businesses involving the provision of medical, legal, accounting and consulting services,³ and provide greater detail regarding services within these categories that will and will not be included as part of an SSTB. As expected, the Proposed Regulations do not add any new categories of SSTBs, such as oil field, transportation or similar services, that could impact the energy industry. 

The Proposed Regulations also provide guidance with respect to the residual category of SSTBs, which was described under the TCJA as any trade or business where the principal asset is the reputation or skill of one or more of its employees or owners (the Residual SSTB). Taxpayers in the energy industry were concerned that the Residual SSTB, if read broadly, could include nearly any business where an owner or employee had developed a professional reputation that contributed to the success of the business. The Proposed Regulations, however, limit this category to businesses where a person receives fees or other compensation for endorsing products or services, for the use the person’s likeness, name or voice, or for appearing at an event or on radio, television or other media. The narrow scope of the Residual SSTB has put the energy industry at ease, since it appears unlikely that the IRS will use the Residual SSTB as a vehicle to draw most energy companies with prominent owners and operators into the SSTB definition. 

Finally, the Proposed Regulations include a de minimis rule that would exclude from SSTBs larger businesses (those with more than $25 million in gross receipts in a taxable year) if less than 10% of its gross receipts are attributable to specified activities, and smaller businesses (those with $25 million or less in gross receipts in a taxable year) if less than 5% of gross receipts are attributable to specified activities.

The second limitation caps the QBI deduction at the greater of (1) 50% of the individual’s allocable share of W-2 wages with respect to the trade or business (the W-2 Wage Limitation), or (2) the sum of 25% of the individual’s allocable share of W-2 wages with respect to the trade or business, plus 2.5% of the individual’s allocable share of the unadjusted tax basis immediately after acquisition (UBIA) of qualified property used in the trade or business (the W-2 Wage and UBIA Limitation). The Proposed Regulations provide much-anticipated guidance for determining a business’s W-2 wages for purposes of the W-2 Wage Limitation and the W-2 Wage and UBIA Limitation. As expected, such portion of the Proposed Regulations was modeled after the rules for determining W-2 wages under former Code Section 199, which provided the deduction for domestic production activities and was repealed by the TCJA. 

Taxpayers have been particularly pleased that, under the Proposed Regulations, an employer can include W-2 wages paid by another person or entity for purposes of calculating its W-2 wages, as long as the wages were paid to employees providing services to such employer. Accordingly, the common practice of creating a partnership subsidiary to employ individuals who are partners of the parent partnership to allow such individuals’ compensation to be treated as W-2 wages, rather than guaranteed payments, should allow the parent partnership to include such subsidiary partnership wages for the W-2 Wage Limitation and the W-2 Wage and UBIA Limitation.

The Proposed Regulations also provide taxpayers the option, for purposes of calculating W-2 wages of a taxpayer and determining the UBIA of any qualified property held by a taxpayer, to aggregate multiple businesses that are conducted through different pass-through entities. Such aggregation must be elected at the individual taxpayer level, and generally is available for businesses that are under common control and are deemed to be functionally related under the Proposed Regulations. Such aggregation may permit individuals to use W-2 wages from one business to increase the W-2 Wage Limitation and the W-2 Wage and UBIA Limitation with respect to a related business with a greater amount of QBI but without significant W-2 wages and, similarly, to use UBIA attributable qualified property of one business to increase the W-2 Wage and UBIA Limitation of another business. Moreover, aggregation is expected to allow taxpayers to reduce the administrative burden of calculating the W-2 Wage Limitation and the W-2 Wage and UBIA Limitation on a business-by-business basis.

Finally, the Proposed Regulations clarify a critical aspect of the definition of qualified property for purposes of calculating the W-2 Wage and UBIA Limitation. For this purpose, qualified property generally means depreciable tangible property used in the trade or business for the production of QBI. The Proposed Regulations, however, provide that adjustments to the tax basis of partnership property arising when a taxpayer acquires an interest in a partnership, under Code Section 743(b) of the Code, or in connection with a distribution by the partnership, under Code Section 734(b), are not treated as qualified property and therefore would not increase a taxpayer’s W-2 Wage and UBIA Limitation.  As a result, rather than purchasing an interest in assets indirectly by acquiring a partnership interest, taxpayers may prefer to acquire and hold an undivided interest in such assets, and contribute the interest in such assets to a newly-formed partnership immediately after purchase.  Prior to the TCJA, a taxpayer generally would have obtained the same tax basis adjustment under either acquisition structure, and therefore would have been largely indifferent as between the two structures from a tax perspective. 

The Proposed Regulations are effective for taxable years ending after the date on which these regulations are finalized, although taxpayers are permitted to rely on the Proposed Regulations in their entirety until that date. Certain anti-abuse rules in the Proposed Regulations are proposed to apply to taxable years ending after December 22, 2017.

 
1 All income tax rates provided herein are exclusive of the Medicare tax on unearned income.

2 An individual will exceed the Threshold if the individual’s taxable income for a given year is equal to or greater than (1) $315,000, with a phase-in of the limitation for taxable income up to $415,000, for married individuals filing jointly, or (2) $157,500, with a phase-in of the limitation for taxable income up to $207,500, for single individuals or married individuals filing separately.

3 Notably, the traditional banking business and services performed by real estate brokers, insurance brokers, engineers and architects are not SSTBs

IRS Issues Proposed Regulations Providing Clarity for REIT Investors

By Michele Alexander, Ryan Davis and Catherine Engell

The Tax Cuts and Jobs Act introduced new Section 199A of the Internal Revenue Code (the Code), which provides individual taxpayers as well as certain other non-corporate taxpayers with a significant, though complex, deduction for qualified business income (QBI) from each of the taxpayer’s qualified trades or business, as well as a deduction of up to 20% of the aggregate qualified REIT deduction and qualified publicly traded partnership (PTP) income (click here and here for more).  This complicated new provision left practitioners with a number of questions regarding its scope and application.  In response to these concerns and requests for clarification, in August the Department of Treasury published proposed regulations in connection with Section 199A (the Proposed Regulations). 

For direct and indirect owners of Real Estate Investment Trusts (REITs), the new Code provision may improve the already favorable tax treatment of this popular real estate investment vehicle (click here for more).  REITs generally are treated as corporations for most federal tax purposes, but by complying with numerous income, asset, ownership and operational rules, and incur little to no corporate level tax.  Further, from a shareholder standpoint, distributions from REITs generally are treated similarly to corporate distributions, which are treated first as taxable income to the extent of current and accumulated earnings and profits, second as return of capital to the extent of basis and therefore not subject to tax, and finally as taxable capital gain.  In the case of the deduction available under Section 199A of the Code (the 199A deduction), the inclusion of “qualified REIT dividends” in the computation of combined qualified business income, may result in an increased 199A deduction in an amount equal to 20% of a taxpayer’s qualified REIT dividends (click here for more). 

The Proposed Regulations address REIT-specific issues, such as the definition and determination of qualified REIT dividends, basic computational rules, and carryover loss rules.

Qualified REIT Dividends Defined
Section 1.199A-3(c)(2) of the Proposed Regulation defines “qualified REIT dividend” generally as any dividend from a REIT received, directly or through a relevant pass-through entity (excluding income earned from a PTP), during the taxable year that (1) is not a capital gain dividend, as defined under Section 857(b)(3) of the Code, (2) is not qualified dividend income, as defined in Section 1(h)(11) of the Code (i.e. eligible for the lower 20% rate as non-REIT corporate dividends) and (3) is received with respect to stock that has been held for 45 days or more.  Further, Section 1.199A-3(b)(2)(B)(ii) of the Proposed Regulations clarifies that qualified REIT dividends are not included in the definition of QBI and are therefore not subject to the same limitations that apply to QBI. 

Computational Rules
The amount of qualified REIT dividends a taxpayer receives is only part of a larger and more complicated equation.  For purposes of computing the combined qualified business income, the sum of qualified REIT dividends and qualified PTP income is added to the QBI to determine the allowable deduction.  In general, the allowable deduction is the lesser of:  (a) 20 percent of the taxpayer’s QBI, plus 20 percent of the taxpayer’s qualified REIT dividends and qualified PTP income and (b) 20 percent of the taxpayer’s taxable income minus net capital gains.

If the taxpayer’s taxable income is above the $315,000 (for married couples filing jointly) or  $157,500 (for all other taxpayers), the deduction may be limited based on other factors relevant to QBI, including whether the business is a specified service trade or business that is not entitled to the deduction, as well as the W-2 wages paid by the business and the unadjusted basis of certain property used by the business (which otherwise are part of the QBI computation and qualification – see here). These limitations are phased in for taxable income between $315,000 and $415,000 for joint filers and between $157,500 and $207,500 for all other taxpayers, as adjusted for inflation in subsequent years.

Therefore, as the deduction is phased out, the impact of qualified REIT dividends may differ (as it also may depending on the ratio of taxable income to such dividends).  The “lesser of” formula thus is more complex than it may first appear.

The Proposed Regulations helpfully provide examples clarifying how to calculate the 199A deduction when a taxpayer receives qualified REIT dividends.  The following example is a simplified version of Example 4, found in Section 1.199A-1(c)(3) of the Proposed Regulations.  If two married taxpayers are filing jointly, with income of $270,000 (below the $315,000 threshold), QBI of $100,000 (included in $270,000 of income), and qualified REIT dividends of $1,500, the married taxpayers would be entitled to deduct $300 more than if the married taxpayers only had QBI.  Under these facts, the married taxpayers would be entitled to a 199A deduction in the amount of $20,300, the lesser of (i) 20% of the QBI ($100,000 x 20%  =$20,000), plus 20% of the qualified REIT dividends ($1,500 x 20% = $300) and (ii) 20% of the married taxpayers’ total taxable income for the taxable year ($271,500 x 20% = $54,300).  By comparison, under a similar scenario without qualified REIT dividends, the married taxpayers would only be entitled to a $20,000 deduction, the lesser of (i) 20 % of the QBI ($100,000 x 20% = $20,000) and (ii) 20% of the married taxpayers total taxable income for the taxable year ($270,000 x 20% = $54,000).  

Importantly, the computation for qualified REIT dividend remains the same regardless of whether a taxpayer has income that is within the phase-in-range or exceeds the income threshold.  The computation of QBI does change depending on a taxpayer’s income.  In addition, the value of the qualified REIT dividends in the overall equation can vary due to the aggregation with the net qualified PTP income received, as discussed in further detail below.   

Carryforward Loss Rules
Prior to the issuance of the Proposed Regulations, it was unclear what would occur if a taxpayer’s combined qualified REIT dividend and qualified PTP income were equal to an amount less than zero (because a loss from a PTP exceeds the sum of the qualified REIT dividend and other PTP income).  Specifically, practitioners awaited guidance as to whether (i) the loss should be netted against the net positive QBI in the same taxable year as the loss occurred, thereby reducing or eliminating the benefit of the 199A deduction for such year, or (ii) eliminating the qualified REIT dividend and qualified PTP income in the current year, carrying forward the loss to subsequent tax years (but otherwise not affecting the current year 199A deduction).  Section 1.199A-1(d)(3) of the Proposed Regulations, makes clear that for purposes of Section 199A of the Code, when the computation for combined qualified REIT dividends and qualified PTP income results in an amount less than zero for the taxable year, the negative amount is not netted against other current year QBI, but rather must be carried forward and used to offset the combined amount of qualified REIT dividends and PTP income in the subsequent taxable year.  Note that this carryover rule does not affect the deductibility of the loss for purposes of other provisions of the Code.  

Therefore, a taxpayer that receives qualified REIT dividends in 2018, but who reports a loss with respect to qualified PTP income greater than such dividend income will not benefit from the 20% deduction associated with the qualified REIT dividend.  Further, the carryforward loss will reduce the deduction available in future years by offsetting the combined qualified REIT dividend and qualified PTP income in subsequent years.  

Many had hoped that the Proposed Regulations would help bring clarity and simplicity to the computation of the 199A deduction and reduce compliance costs, which the IRS anticipates to be over $1 billion for the years in effect (2018 through 2026).  Although the provisions specifically relating to qualified REIT dividends provide some clarity, the complexity with respect to 199A deductions remains and it is not clear that the Proposed Regulations significantly will reduce the financial burden of compliance.

House Republicans Seek to Lock In, Expand Tax Cuts With "2.0"

By Liam Donovan

House Ways and Means Committee Chairman Kevin Brady (R-TX) last week released and ultimately approved a long-awaited package of legislation dubbed “Tax Reform 2.0.” The legislative text fleshes out the “listening session framework” put out by the Chairman shortly before the August recess. In concert with committee members and after discussions with rank and file House Republicans, the effort yielded three pieces of legislation: the Protecting Family and Small Business Tax Cuts Act, the Family Savings Act, and the American Innovation Act. The package was marked up in committee on Thursday, and advanced along party lines, setting up possible floor action for the end of the month.

The first bill, and centerpiece of the effort, would address the scheduled expiration of the Tax Cuts and Jobs Act’s individual title, which is slated to lapse at the end of 2025 under current law. One of the primary critiques of the new tax law has long been the optics of permanent tax breaks for corporations in contrast to temporary relief for individuals and families. Some Democrats cited this disconnect as their reason for opposing the original bill, and the campaign has seen attacks charging Republicans with raising taxes on the middle class based on projections for 2026 and beyond. While the Tax Cuts and Jobs Act (TCJA) was limited by strict revenue rules pursuant to the budget reconciliation process, House passage of the Protecting Family and Small Business Tax Cuts Act faces no such procedural challenge, allowing Republicans to parry these criticisms, force Democrats to once again oppose tax cuts, and remind voters heading into the midterm election of their biggest legislative achievement to of the 115th Congress.

Among other reforms, the bill would make permanent the reduced rate structure and brackets for all income levels, the increased standard deduction, and the expanded child tax credit. The bill would also make permanent one of TCJA’s major sticking points, the $10,000 limitation on the state and local tax (SALT) deduction, a “pay-for” provision that cost the support of a dozen blue state Republicans when it was originally enacted.

In addition to the impact on individuals and families, the bill would deliver long-term certainty and relief to small, closely-held, and family-owned business. The new 20 percent deduction for qualified business income (QBI) would be made permanent, as would the recently doubled $11 million death tax exemption that climbs to $22 million for married couples.

The second bill focuses on reforming family savings and retirement vehicles by expanding multiple employer plans (MEPs), providing flexibility for 401k elections, loosening age, income-source, and withdrawal restrictions on individual retirement accounts (IRAs), and broadening the scope of 529-eligible expenses. It introduces a series of administrative and technical changes aimed at making it easier for businesses to offer retirement savings options. And it would create a new Universal Savings Account (USA) that an individual could contribute $2500 per year toward on an after-tax basis, with earnings accruing and distributing tax-free, and no time, use, or income limitations.

The third and final bill of the package is geared toward spurring entrepreneurship. The American Innovation Act would allow a deduction of up to $20,000 for start-up and organizational costs, combining, simplifying, and ultimately doubling existing provisions, while increasing the phase-out threshold to $120,000 in aggregate expenses. The bill would also reform the code such that a company’s net operating losses (NOLs) and credits generating during their start-up period will not be subject to limitation in future, more profitable years should investment in the business trigger a change in ownership.

While the contents of phase two are hardly surprising, the structure of the package is notable for a number of reasons. First, in parceling out the elements into three discrete bills, members can support the effort selectively without being forced into a binary decision. This is particularly important in high-tax blue states, where the aforementioned SALT issue will likely lose vulnerable GOP members from states like California, New York, and New Jersey. These members will be able to support the other two bills and take credit for supporting the second round of cuts without being saddled with the local political baggage of an unpopular provision. Relatedly, it also gives leadership the break-glass option of pulling a single bill from the floor without scuttling the entire package. And finally, with the Senate working on a retirement and savings package of their own—the bipartisan Retirement Enhancement and Savings Act (RESA)—this strategic trifurcation keeps alive the possibility that the overlapping elements could ultimately be signed into law. The latter point is key, because Tax Reform 2.0 is otherwise a House-only, Republican-only, campaign-centric enterprise.

Thursday’s marathon 8-hour full committee mark-up of the package featured a lively debate over the merits of the tax cuts, if little actual drama. Democrats offered a number of amendments, ranging from a SALT fix to forcing release of the President’s tax returns, but all of the proposed changes were either voted down or deemed not germane. The permanence and retirement savings bills passed on party lines, 21 to 15 and 21 to 14, respectively, while the start-up legislation was approved by voice vote.

Now that the package has been favorably reported, the outlook is unclear. The stated goal is to have these bills passed by the end of the month, with a target on the final week in September. But with an antsy conference eager to get back to their districts and campaign, and a series of appropriations bills to process before the fiscal year deadline, the timeline could easily slip. Either way, the introduction and committee-level approval of a second round of tax cuts has given Republicans something to crow about on the trail, which was the primary goal all along.