On December 20, 2017, the House and Senate approved H.R. 1, the "Tax Cuts and Jobs Act" (the "Act").1 This approval follows reconciliation by a conference committee of the original legislation passed by the House on November 16, 2017 (the "House Bill") and the amendment to the House Bill passed by the Senate on December 2, 2017 (the "Senate Bill"). The Act will next be sent to the president for his approval or veto.
Changes in the Act
We describe below the material changes in the Act, if any, as compared to the relevant provisions of the House Bill, the legislation reported by the Senate Finance Committee prior to approval by the full Senate (the "SFC Bill"), and the Senate Bill. While these summaries are not comprehensive, we have sought to highlight the changes in the Act that are most likely to be of interest to our clients. Please see our prior coverage of the House Bill and SFC Bill.
Business Tax Rate Provisions
Reduction in corporate tax rate
Consistent with the approach of the House Bill and the Senate Bill, the Act lowers the corporate tax rate from 35% under existing law to 21% for taxable years beginning after December 31, 2017 (increased from 20% as proposed in the House Bill and the Senate Bill and which would not have been effective until tax years beginning after December 31, 2018 under the Senate Bill).2 There is no special rate for personal service corporations in the Act (meaning they would also be taxed at the 21% rate, versus 25% in the House Bill).
The Act reduces the dividends-received deduction for corporate taxpayers to 65% with respect to dividends from "20%-owned corporations" and to 50% with respect to dividends received from less than 20%-owned corporations (from 80% and 70%, respectively), consistent with the House Bill and the Senate Bill.3
Maximum rate on business income of individuals earned through pass-through entities and by sole proprietors
To reduce the effective tax rate on pass-through business income of individuals, the Act generally adopts the deduction-based approach set forth in the Senate Bill instead of the 25% pass-through tax rate proposed in the House Bill, subject to certain modifications.
First, the Act provides for a deduction equal to 20% of "qualified domestic business income" ("QDBI") allocated to individual owners or shareholders of certain pass-through businesses (versus the 23% deduction proposed in the Senate Bill and the 17.5% deduction proposed in the SFC Bill). For a taxpayer in the highest tax bracket of 37%, this reduces the tax rate on "qualified business income" to 29.5% (versus 25% under the House Bill and 28.49% under the Senate Bill).
Next, with respect to specified service businesses, the Act reduces the threshold amount above which a limitation on the QDBI deduction begins to apply. The threshold amount is $315,000 for married taxpayers filing jointly, and $157,500 for unmarried taxpayers and married taxpayers filing separately (as compared to $500,000 and $250,000, respectively, under the Senate Bill). The limitation is phased in over the next $100,000 of taxable income for married taxpayers filing jointly, and $50,000 for unmarried taxpayers and married taxpayers filing separately (consistent with the Senate Bill).
The scope of the specified service businesses subject to the deduction limitation under the Act is generally consistent with the House Bill and the Senate Bill (i.e., certain specified personal service businesses, such as health, law, consulting, accounting, financial services, brokerage services or performing arts) but, notably, engineering and architecture services are not subject to such limitation under the Act.
The Act also modifies the W-2 wage limitation on the QDBI deduction that is phased in with respect to taxpayers with taxable income in excess of the threshold amount. The wage limitation is the greater of (i) 50% of the W-2 wages paid with respect to the applicable qualified trade or business, or (ii) the sum of 25% of the W-2 wages paid with respect to the qualified trade or business plus 2.5% of the unadjusted tax basis (immediately after the initial acquisition) of all qualified property. For this purpose, "qualified property" means tangible depreciable property (I) that is held by, and available for use in, the qualified trade or business at the close of the taxable year, (II) that is used in the production of QDBI at any point during the taxable year, and (III) for which the depreciable period has not ended before the end of the taxable year (for this purpose, the period beginning on the date the property is first place in service and ending on the later of (a) the date 10 years after the property is first placed in service, or (b) the last day of the last full year of the applicable recovery period that would apply to the taxpayer under Section 168 of the Internal Revenue Code of 1986, as amended (the "Code")). The Act does not clarify the treatment under the W-2 wage limit of "guaranteed payments" and payments made for services by a partnership to a partner acting other than in a partner capacity (Section 707(a) payments).
The Senate Bill expanded the scope of the deduction beyond the SFC Bill to include publicly traded partnerships with passive income under Section 7704(c) of the Code as well as certain dividends from real estate investment trusts, an approach that the Act adopts as well. In addition, the Senate Bill clarified that working as an employee is not a qualified trade or business for purposes of the deduction, which is unchanged in the Act.
The QDBI deduction is effective for tax years beginning after December 31, 2017 and expires for taxable years beginning after December 31, 2025.
Dividends from inverted corporations
The Act contains a provision from the Senate Bill that taxes dividends received by individuals from foreign corporations at ordinary income rates if the foreign corporation participates in a so-called "inversion" transaction that results in its being treated as a "surrogate foreign corporation" under Section 7874 of the Code (other than a foreign corporation that is treated as a domestic corporation under Section 7874(b) of the Code). Unlike the Senate Bill, however, the Act applies only to dividends received after the date on which the Act is enacted from foreign corporations that become surrogate foreign corporations after such date.
Other Domestic Business Provisions
Increased expensing and expansion of Section 179 expensing for small business
As with the Senate Bill, the Act provides for (i) 100% bonus depreciation for qualified property placed in service after September 27, 2017 and before January 1, 2023, (ii) 80% bonus depreciation for qualified property placed in service in 2023, (iii) 60% bonus depreciation for qualified property placed in service in 2024, (iv) 40% bonus depreciation for qualified property placed in service in 2025, and (v) 20% bonus depreciation for qualified property placed in service in 2026 (in each case with an additional year for certain qualified property with a longer production period).4 The Act differs from the Senate Bill (and follows the House Bill) by providing that increased expensing is also available for certain used property.
The Act also follows the House Bill by providing a phase-down for property acquired before September 28, 2017 and placed in service after September 27, 2017. Under the Act, property that is acquired before September 28, 2017 (or pursuant to a written binding contract that was entered into on or before September 27, 2017) is eligible for (i) 50% bonus depreciation if placed in service prior to January 1, 2018, (ii) 40% bonus depreciation if placed in service in 2018, (iii) 30% bonus depreciation if placed in service in 2019, and (ii) 0% bonus depreciation if placed in service after 2019 (in each case with an additional year for certain qualified property with a longer production period).5
The Act makes no changes to the provisions in the Senate Bill providing increased expensing under Section 179 of the Code.
Limitations on interest deductions
The Act follows the proposal in the Senate Bill that disallows a deduction for a taxpayer's net business interest expense to the extent it exceeds the sum of such taxpayer's business interest income plus 30% of such taxpayer's adjusted taxable income, with the following modifications: Similar to the House Bill, (i) the limitation applies to businesses with average gross receipts of $25 million over a three-year period and (ii) for taxable years beginning after December 31, 2017 and before January 1, 2022, adjusted taxable income is based on earnings before reduction for depreciation, amortization and depletion deductions.
The Act does not include the "anti-base erosion" provision previously contained in the House Bill and the Senate Bill that would have limited the deductibility of the net interest expense of U.S. corporations that are members of an "international financial reporting group" or a "worldwide affiliated group," respectively.
NOLs and repeal of the corporate AMT
The Act generally follows the Senate Bill in limiting a corporate taxpayer's ability to deduct an NOL carryover to the extent of only 80% of its taxable income effective for taxable years beginning after December 31, 2017 (versus 90% of taxable income in the House Bill). In addition, consistent with both the Senate Bill and the House Bill, the Act repeals the NOL carryback but allows an indefinite carryover period (in each case, subject to certain exceptions for farming and small businesses and property and casualty insurance companies).
The Act, unlike the Senate Bill but consistent with the SFC Bill and the House Bill, repeals the corporate AMT for taxable years beginning after December 31, 2017.
Repeal of deduction for income attributable to domestic production activities
Consistent with the House Bill, the Act repeals Section 199 of the Code (providing a deduction from taxable income for qualified domestic production activities, e.g., manufacturing, software development, electricity production) effective for tax years beginning after December 31, 2017.
Modification to recovery period for real property
Unlike the Senate Bill, the Act does not reduce the recovery period for nonresidential real property and residential rental property to 25 years, leaving such recovery period at 39 years and 27.5 years, respectively.
Special rules for taxable year of inclusion
The Senate Bill clarified that the "all events test" will be met with respect to items of income no later than the taxable year in which such income is taken into account as income on an applicable financial statement (generally an audited financial statement), unless such income is with respect to advance payments and the taxpayer makes an applicable election to defer recognition. The Act adopts this approach effective for taxable years beginning after December 31, 2017, and, similar to the Senate Bill, generally codifies the treatment of certain advance payment contracts as currently provided under Revenue Procedure 2004-34 by allowing a one-year deferral.
Taxation of partnership "carried interests."
As set forth in the Senate Bill and the House Bill, the Act adopts a new three-year holding period requirement for holders of "carried interests" in partnerships or entities treated as partnerships for U.S. federal income tax purposes in order for preferential long-term capital gain rates to apply with respect to the disposition of such interests, effective for tax years beginning after December 31, 2017. In the process of reconciling the Senate Bill and House Bill, the conference committee described the interaction of Section 83 of the Code with the provision's three-year holding period requirements. The conference committee noted in its report that the fact that an individual may have included an amount in income upon acquisition of an applicable partnership interest or made an election under Section 83(b) of the Code with respect to such interest does not change the three-year holding period requirement for long-term capital gain treatment. The Act authorizes the Secretary of the Treasury to promulgate regulations under this provision, which may provide further guidance.
Amortization of research and experimental expenditures
Consistent with the Senate Bill and House Bill, the Act amends Section 174 of the Code such that taxpayers must capitalize specified research or experimental expenditures and amortize such expenditures ratably over 5 years, beginning with the midpoint of the taxable year in which such expenditures are paid or incurred (15 years in the case of specified research or experimental expenditures attributable to research conducted outside the United States). This provision is effective for amounts paid or incurred in tax years beginning after December 31, 2021.6
Retention of special rule for sale or exchange of patents; certain self-created property not treated as a capital asset
The Act does not adopt the House Bill provision that would have repealed Section 1235 of the Code, under which preferential long term capital gains treatment is currently accorded to the sale or exchange of patents by an individual whose efforts created such property, and certain other individuals who acquired the property from the creator prior to its reduction to practice. However, the Act does adopt the provision in the House Bill excepting from the definition of "capital asset" self-created patents, inventions, models or designs, and secret formulas or processes, in the same manner as self-created copyrights, literary, musical and artistic compositions and other similar intangibles pursuant to Section 1221(a)(3) of the Code. Effective for dispositions after December 31, 2017, the disposition of these intangibles by the taxpayer who created them or a taxpayer with a substituted or transferred basis from the creator generally will not receive capital gain treatment (presumably, in the case of patents, except to the extent Section 1235 of the Code applies).
Provisions Impacting Tax Equity and Renewables
As with the Senate Bill, the Act does not directly amend the investment tax credit ("ITC") available under Section 48 of the Code, the production tax credit ("PTC") available under Section 45 of the Code, or the new markets tax credit available under Section 45D of the Code.
The Act, however, diverges from the Senate Bill (but follows the House Bill) by repealing Section 708(b)(1)(B) of the Code (providing for technical terminations of a partnership), effective for partnership taxable years beginning after December 31, 2017.
The Act also differs from the Senate Bill and follows the House Bill by amending the provisions of Section 118 of the Code, with certain modifications. The Act maintains current law with respect to any "contribution to capital" of a corporation (which generally is not included in the corporation's gross income), but provides that "contributions to capital" do not include (1) any contribution in aid of construction or any other contribution as a customer or potential customer and (2) any contribution by any governmental entity or civic group (other than a contribution made by a shareholder in his capacity as such) and thus renders such contributions potentially taxable.
As discussed below, the Act includes a 10% "base erosion minimum tax" that is akin to the one proposed in the Senate Bill. Unlike the Senate Bill (which did not permit any offset for tax credits other than the research and development tax credit against the minimum tax), the Act generally provides that through December 31, 2025, up to 80% of PTCs, investment credits available under Section 46 of the Code to the extent allocable to the ITC, and low income housing credits available under Section 42(a) of the Code are taken into account in calculating the base erosion minimum tax.
Importantly, unlike the Senate Bill, the Act does not repeal Section 196 of the Code (providing that certain unused previously carried forward business credits may be deducted), but does (as noted above) repeal the corporate AMT.
Lastly, as discussed above, the Act amends Section 451 of the Code and generally provides that advance payments may be deferred by, at most, one year after receipt.
Participation exemption and transition tax
The Act generally follows the House Bill and the Senate Bill by adopting a modified "participation exemption" on the one hand, while imposing new limitations on potential "base erosion" and "profit shifting" on the other.
In line with the House Bill and the Senate Bill, the Act exempts U.S. corporations from U.S. tax on dividends from any foreign corporation (other than a passive foreign investment company) in which the U.S. corporation owns stock representing at least 10% of the foreign corporation's combined voting power or value. Similar to the Senate Bill, the exemption does not apply to any "hybrid dividend," which is generally a dividend for which a tax deduction (or other tax benefit) would be allowed to the foreign corporation, and requires that the U.S. corporate recipient satisfy a one-year holding period requirement with respect to such stock. This exemption applies to distributions after December 31, 2017.
Unlike both the House Bill and the Senate Bill, however, the Act does not amend Section 956 of the Code, generally continuing the treatment of investments by "controlled foreign corporations" ("CFCs") in U.S. property under current law (which may result in deemed income inclusions for any "United States shareholder," as defined in Section 951(b) of the Code (a "U.S. shareholder"), of such CFCs). The conference committee did not provide any explanation for this deviation from the House Bill and the Senate Bill, which would have exempted corporate U.S. shareholders from any such deemed income inclusions. In addition, the Act does not make permanent the subpart F "look-thru" rule for dividends received by CFCs from related CFCs, which is set to expire for taxable years beginning after December 31, 2019.
As part of the transition into a tax regime with a modified participation exemption, the Act, like the House Bill and the Senate Bill, requires a one-time "mandatory inclusion" of certain accumulated offshore earnings, which applies to any U.S. shareholder of any foreign corporation (whether or not a CFC, but excluding any "passive foreign investment company" that is not a CFC). This inclusion is treated as occurring at the end of 2017 for foreign corporations whose U.S. tax year is the calendar year. The applicable tax rates on such earnings generally are 8% and 15.5% (representing increases from the rates proposed in both the Senate Bill and the House Bill) depending on whether they have been reinvested in the applicable foreign subsidiary's business, or whether the related earnings have been retained in the form of cash or cash equivalents, respectively. However, these rates retroactively increase to 35% where a U.S. shareholder previously taxed at either of the reduced rates participates in an "inversion" transaction within 10 years following the enactment of the Act. Similar to the Senate Bill, the Act also provides that at the election of the U.S. shareholder, the tax liability resulting from this "mandatory inclusion" generally is payable over a period of up to eight years in increasing installments (beginning with 8% of the net tax liability, and increasing to 25% by the eighth year).
Base erosion and related measures
The Act largely adopts the "base erosion" and related measures contained in the Senate Bill, but the terms of these provisions differ in certain noteworthy respects as described below.
First, the Act follows the Senate Bill in requiring U.S. shareholders of CFCs to include in income their "global intangible low-taxed income" ("GILTI") in a manner similar to a CFC's "subpart F income," which is in lieu of the similar "foreign high return" regime contained in the House Bill. However, unlike the Senate Bill, the Act measures a CFC's GILTI by reducing the deemed return on a CFC's tangible assets by all or a portion of its interest expense (thereby potentially increasing the amount of the CFC's GILTI). Furthermore, the Act imposes an effective 10.5% U.S. corporate tax on GILTI inclusions for tax years beginning after December 31, 2017 and before January 1, 2026 by permitting "C" corporations (other than regulated investment companies and real estate investment trusts) a limited deduction, similar to the approach taken in the Senate Bill (which would have generally imposed a 10% U.S. tax). The Act also retains a similar deduction found in the Senate Bill for "foreign derived intangible income" recognized by U.S. corporations, as to which an effective 13.125% tax rate applies over the same period. In addition, 80% of a corporation's foreign tax credits may be used to offset U.S. tax on GILTI inclusions, such that no incremental tax is imposed on GILTI if the applicable foreign tax rate equals or exceeds 13.125%.
Second, the Act generally imposes a 10% "base erosion minimum tax" (reduced to 5% for taxable years beginning in 2018) on any income that would have been subject to U.S. tax had the taxpayer not made certain payments that erode the U.S. tax base in taxable years beginning after December 31, 2017. However, the Act permits the tax to be offset by the research credit available under Section 41(a) of the Code and up to 80% of the investment credit under Section 46 of the Code to the extent allocable to the ITC, PTCs and low income housing credits available under Section 42(a) of the Code in taxable years beginning before January 1, 2026, after which the rate of tax also increases to 12.5%. This expands the types of credits that may offset the minimum tax as compared to the proposal contained in the Senate Bill, which only permitted the research credit to offset the tax.
Tax gain on sale of a partnership interest on look-through basis
The Act generally follows the Senate Bill's "look-through" approach (consistent with Revenue Ruling 91-32 and reversing the outcome in Grecian Magnesite Mining, Industrial & Shipping Co., SA v. Comm'r, 149 T.C. No.3 (2017)) to determine whether gain incurred in the sale or exchange of a partnership interest will be treated as income that is effectively connected with the conduct of a trade or business in the United States ("effectively connected income" or "ECI"). In addition, the Act requires the transferee of a partnership interest to withhold 10% of the amount realized on the sale or exchange of such partnership interest occurring after December 31, 2017, unless the transferor certifies that it is not a non-resident alien individual or foreign corporation. The portion of the Act treating gain on sale or exchange of a partnership interest as ECI is effective for sales and exchanges on or after November 27, 2017.
The Act contains several provisions from the House Bill and the Senate Bill that have the effect of increasing the number of U.S. persons subject to the GILTI rules and the anti-deferral rules under subpart F of the Code. Like the Senate Bill and the House Bill, the Act eliminates the requirement in Section 951(a)(1) of the Code that a foreign corporation be a CFC for 30 consecutive days in order for the anti-deferral rules to apply (effective for taxable years of foreign corporations beginning after December 31, 2017). Instead, these regimes apply if a foreign corporation is a CFC at any time during the taxable year. Second, effective for the same period, the Act modifies Section 951(b) of the Code such that the term "U.S. shareholder" means any U.S. person who owns at least 10% of the total value of all classes of a foreign corporation's stock (rather than exclusively 10% of the vote under the current provision). Finally, following the proposals in the House Bill and the Senate Bill, the Act modifies the stock attribution rules that apply in determining whether a foreign corporation is a CFC by generally permitting "downward" attribution from a shareholder that is a foreign person to a related U.S. person, thereby rendering ineffective certain CFC "de-control" ownership structures.
Goodwill and "going concern" value subject to "deemed royalty" and transfer pricing rules; repeal of "active trade or business" exception to gain recognition on outbound transfers
The Act follows the Senate Bill by requiring that all outbound transfers of goodwill, "going concern" value and similar intangible property in otherwise tax-free transactions are subject to the rules of Section 367(d) of the Code, generally requiring the transferor to take into income the value of the transferred property over its useful life as deemed royalty payments. The Act also contains the proposal in the Senate Bill codifying certain recently litigated transfer pricing regulations that permit the IRS to determine an arm's-length price under a "realistic alternative principle," i.e., by reference to a transaction that is different from the transaction that was actually completed (e.g., the owner of intangible property using intangible property to make a product itself rather than licensing intangible property to a third party and purchasing the product from the third party). These provisions are effective for transfers in taxable years beginning after December 31, 2017.
The Act also repeals the "active trade or business" exception to the rule under Section 367(a) of the Code that otherwise generally requires a transferor to recognize gain on its transfer of assets to a foreign corporation in a transaction that would otherwise qualify as tax-free. This repeal is effective for transfers occurring after December 31, 2017.
Inbound intangible property transfers by CFCs
The Act does not contain the proposal included in the Senate Bill that generally would have permitted CFCs to distribute certain intangible property to corporate U.S. shareholders without giving rise to U.S. tax. As a result, a CFC that makes such a distribution of such intangible property generally continues to recognize gain for U.S. tax purposes equal to the excess of the fair market value of such property over its tax basis, and corporate U.S. shareholders may be required to recognize gain with respect to stock in such CFC as a result of such distribution (to the extent the amount of such distribution exceeds the amount treated as a dividend and such U.S. shareholder's basis in stock of such CFC).
Hybrid transactions and entities
The Act generally follows the proposal in the Senate Bill that denies a deduction for any interest or royalties paid or accrued to a hybrid entity7 or pursuant to a hybrid transaction8 to the extent that such amounts are paid or accrued to certain related parties that are not required to include such amount in (or are allowed to deduct such amount from) their taxable income. This provision is effective for taxable years beginning after December 31, 2017.