On November 2, 2017, the House Committee on Ways and Means, led by Republican Chairman Kevin Brady, released H.R. 1, the "Tax Cuts and Jobs Act."1 The House Committee is expected to mark up the bill beginning on November 6, with the intention of scheduling a full vote by the U.S. House of Representatives before the Thanksgiving recess. Given the recent passage of the budget, Congress may enact tax reform through the reconciliation process, avoiding the need to garner any Democratic votes in the Senate. Meanwhile, the Senate Finance Committee announced that it expects to release its version of the bill next week, but would likely wait to provide a markup until after the House Committee finishes its work.
The Tax Cuts and Jobs Act contains sweeping proposals, several of which are highlighted below, that would significantly impact individuals, pass-through entities, and corporations, both domestically and abroad. Notably, the act does not affect many aspects of the current Internal Revenue Code of 1986, as amended (the "Code"), such as the preferential rates for long-term capital gains and qualified dividend income recognized by non-corporate taxpayers, the gain exclusion for the sale or disposition of "qualified small business stock," or the taxation of carried interest.
Beginning in 2018, the number of tax brackets applicable to individuals would be reduced from seven to four (12 percent, 25 percent, 35 percent, and 39.6 percent).2 The corporate tax rate would be reduced permanently to 20 percent; 100 percent expensing would be available, and a number of credits and deductions would be revised or repealed. As described in more detail below, a portion of the income earned by individuals through pass-through entities would be subject to a 25 percent tax rate, and the current system of international taxation would be largely overhauled.
While the below summaries are by no means comprehensive, we have sought to highlight the changes to the tax code proposed by the act that are of most interest to our clients.
Business Tax Rate Proposals
Section 3001: Reduction in Corporate Tax Rate
Instead of the current graduated corporate income tax rates for corporations with a maximum rate of 35 percent, the corporate tax rate would be lowered to a flat 20 percent rate under the act. Personal services corporations would be subject to a 25 percent corporate tax rate. These lower corporate tax rates would be effective for tax years beginning after December 31, 2017.
Section 1004: Maximum Rate on Business Income of Individuals Earned Through Pass-Through Entities
Section 1004 of the act creates a new 25 percent maximum tax rate for qualified business income allocated to individual owners or shareholders of certain pass-through entities, subject to certain limitations described below. For passive owners or shareholders (applying the existing "material participation" standard under the passive activity loss rules), 100 percent of the income allocated to such owners or shareholders would be treated as qualified business income eligible for the 25 percent tax rate. For active owners and shareholders, 30 percent of the income from an active business activity allocated to such owners or shareholders (the "capital percentage") is treated as qualified business income eligible for the 25 percent tax rate, while the other 70 percent of such active income is treated as compensation subject to ordinary income tax rates (described in footnote 2). Alternatively, an owner or shareholder may make an election to determine a higher capital percentage for certain capital-intensive businesses based on a demonstrated return on business capital at the Federal short-term applicable rate plus 7 percent. Such election is effective for five tax years and may not be revoked.
Income subject to preferential rates, such as long-term capital gains and qualified dividend income, would not be included for purposes of determining the capital percentage and would retain its character. Conversely, other investment income subject to ordinary income rates such as short-term capital gains would not be eligible for treatment as qualified business income. Interest income allocable to a trade or business would be eligible to be recharacterized as business income.
The default capital percentage for certain specified personal service businesses, such as health, law, engineering, accounting, consulting, financial services or performing arts, would be zero percent, meaning that a taxpayer who actively participates in such a business generally would not be eligible for the 25 percent tax rate. An owner or shareholder of such business, however, may make the alternate election based on capital investment in the business, subject to certain limitations.
In addition to the above changes, the act also expands the self-employment tax to shareholders of an S corporation with respect to the active income of such corporation. It appears that the capital percentage of active income will not be subject to self-employment taxes for owners and shareholders of pass-through entities. In what appears to be a drafting oversight, the act potentially extends self-employment taxes to passive investors.
The 25 percent tax rate would be effective for tax years beginning after December 31, 2017.
Domestic Business Proposals
Sections 3101 and 3201: Increased Expensing and Expansion of Code Section 179 for Small Business
Section 3101 of the act proposes 100 percent bonus depreciation for qualified property acquired and placed in service after September 27, 2017, and prior to January 1, 2023, with an additional year for certain qualified property with a longer production period.3 The definition of qualified property remains unchanged from current law (i.e., tangible personal property with a recovery period of 20 years or less under the modified accelerated cost recovery system (MACRS), certain computer software, water utility property or qualified improvement property), as does the provision permitting taxpayers to elect out of bonus depreciation.
Importantly, however, the proposal would repeal the requirement that the original use of the property begin with the taxpayer; instead, property would be eligible so long as the use by the taxpayer is the taxpayer's first use of the property, generally unless the taxpayer acquires the property from a related party or in a transaction that results in the property having a carry-over basis. Section 3101 of the act also provides for a transition rule for the first taxable year ending after the date of enactment, which would allow taxpayers to apply Code Section 168 as if it had not been amended; thus, for 2017, taxpayers would be permitted to claim 50 percent bonus depreciation.
The act would also expand the availability of Code Section 179 expensing, which currently allows businesses to elect to immediately expense up to $500,000 (adjusted for inflation beginning in 2016) of the cost of eligible property (i.e., property acquired by purchase from an unrelated party for use in the active conduct of certain trades or businesses, and which is either eligible for MACRS or is computer software) in the year the property is placed in service. The $500,000 limitation is reduced dollar for dollar to the extent a business places more than $2,000,000 of eligible property in service in any year (such amount is also adjusted for inflation beginning in 2016). Under the proposal, which would be effective from January 1, 2018, through December 31, 2022, the $500,000 limitation would be increased to $5,000,000, and the phase-out amount would be increased from $2,000,000 to $20,000,000.
Sections 3203, 3301, and 4302: Limitations on Interest Deductions
Under current law, subject to a variety of exceptions and limitations (including an "earnings stripping" limitation under Section 163(j) of the Code),4 U.S. businesses generally are permitted to deduct the gross amount of their interest paid or accrued on outstanding indebtedness each year. For taxable years beginning after December 31, 2017, in lieu of the current "earnings stripping" rules, Section 3301 of the act generally would subject any business, regardless of its form, to a disallowance of deduction for its net interest expense to the extent it exceeds 30 percent of its adjusted taxable income. Businesses with average gross receipts of $25 million or less, and certain real property-related businesses, would be exempt from this limitation, and businesses generally would be permitted to carry forward their disallowed interest deductions for five years.
Section 3301 of the act would significantly reduce the tax advantages of leveraged recapitalizations and may increase the cost of leveraged buyouts by limiting the "interest shield" that such transactions generally create under current law. In addition, this limitation may apply to limit the tax advantage of capitalizing so-called U.S. "blocker" corporations (formed by many investment funds) in part by loans from investors in order to generate interest expense to reduce blocker level taxable income.
Section 4302 of the act would further limit the deductible net interest expense of any U.S. corporation that is a member of an "international financial reporting group," which generally includes any group of domestic and foreign entities that prepares consolidated financial statements and has annual global gross receipts of more than $100 million. For taxable years beginning after December 31, 2017, to the extent the U.S. corporation's share of the group's total interest expense exceeds 110 percent of the U.S. corporation's share of the group's EBITDA, such excess interest expense would be disallowed and could be carried forward for five years. Section 4302 of the act would prevent multinational groups from capitalizing a U.S. corporation with excessive amounts of debt relative to their overall group earnings, regardless of the ratio that the corporation's interest expense bears to its adjusted taxable income.
Sections 2001 and 3302: Net Operating Losses (NOLs) and Repeal of the Corporate Alternative Minimum Tax (AMT)
Subject to certain limitations, businesses that generate NOLs are currently permitted to carry back their NOLs to the two taxable years prior to the year in which they were generated, and may carry them forward twenty years, to offset net taxable income in such years. However, the corporate AMT prohibits corporations from reducing their AMT income by more than 90 percent by using NOLs. As a result, many companies with substantial NOLs are nevertheless subject to the corporate AMT in the first years in which they are profitable.
Although Section 2001 of the act would repeal the corporate AMT for taxable years beginning after December 31, 2017, the changes to the NOL deduction in Section 3302 of the act would produce an effect similar to one aspect of the existing corporate AMT by permitting a corporate taxpayer to deduct an NOL carryover only to the extent of 90 percent of its taxable income (determined without regard to the NOL deduction). In addition, the NOL carryback would generally be repealed, except in the case of certain casualty and disaster losses of small businesses and farms.
While NOL deductions would be limited under Section 3302 of the act, NOLs generated in tax years beginning after 2017 would be permitted to be carried forward indefinitely, and would be increased at a rate equal to the Federal short-term rate plus 4 percent.
Section 3306: Repeal of Deduction for Income Attributable to Domestic Production Activities
Section 199 of the Code, which provides certain taxpayers with a deduction from taxable income for qualified domestic production activities (e.g., manufacturing, software development, and electricity production) would be repealed for tax years beginning after December 31, 2017.
Section 3311 and 3312: Certain Self-Created Property Not Treated as a Capital Asset; Repeal of Special Rule for Sale or Exchange of Patents
The preferential long term capital gains treatment currently accorded to sale or exchange of patents pursuant to Code Section 1235 would be repealed for dispositions after December 31, 2017. In addition, self-created patents would be subject to the same rules as self-created copyrights and other self-created intangibles pursuant to Code Section 1221(a)(3), the disposition of which is generally taxable at ordinary income rates.
Section 3313: Repeal of Technical Termination of Partnerships
The act would repeal, beginning in 2018, Code Section 708(b)(1)(B), which provides that an entity treated as a partnership for U.S. tax purposes terminates when there is a sale or exchange of 50 percent or more of the total interests in partnership capital and profits within a 12-month period. This would greatly simplify certain transactions involving partnership interests, which are often structured to avoid triggering this provision.
Provisions Impacting Tax Equity and Renewables
Section 3304: Revisions to Treatment of Contributions to Capital
Section 3304 of the act would add a new version of Section 76 to the Code, which would treat a contribution to the capital of an entity as gross income. New Code Section 76 would include an exemption for contributions to the capital of an entity if the contribution is in exchange for an interest in the entity to the extent the fair market value of the cash or property contributed to the entity does not exceed the interest in the entity received in the exchange.
While the House Committee summary of Section 3304 of the act indicates that the rule would only be applicable to non-shareholders (or non-partners in the case of partnership), Section 3304 of the act contains no such limitation. As written, new Code Section 76 may cause transfers of property to public utilities to be taxable, notwithstanding previous guidance from the Internal Revenue Service (IRS) to the contrary.
Section 3406: Repeal of the Code Section 45D New Markets Tax Credit (NMTC)
Section 3406 of the act would repeal the NMTCs for investment in qualified community development entities. Under current law, up to $3.5 billion of total NMTCs for each of calendar years 2010 through 2019 may be allocated to qualifying community development entities (with no allocation of NMTCs for year 2020 and beyond). Section 3406 of the act would eliminate this allocation for calendar years 2018 and 2019. There is no impact on NMTCs that have already been allocated.
Section 3501: Modification of the Code Section 45 Production Tax Credit (PTC)
Section 3501 of the act would eliminate the inflation adjustment to the PTC for any facility which begins construction after the date of enactment of the act. In other words, for any facility that has not begun construction by enactment of the act, the PTC will be in an amount equal to 1.5 cents per kW hours of electricity produced during the 10-year PTC period.
Section 3501 of the act would also require that, in order to be treated as beginning construction, a continuous program of construction must be maintained until the facility is placed in service. Surprisingly, this requirement is applicable to all taxable years—including those beginning before the date of enactment of the act. The IRS previously issued guidance which requires a continuous program of construction, but this requirement included a safe harbor and relief for taxpayers that began construction prior to June 2, 2016; Section 3501 of the act provides no such safe harbor or other exception.
Section 3502: Modification of the Code Section 48 Investment Tax Credit (ITC)
While Section 3502 of the act provides an extension of the ITC for many technologies that were no longer eligible for the ITC (e.g., fiber optic solar energy, qualified fuel cell property, qualified small wind energy property, qualified micro turbine property, combined heat and power systems, and thermal energy property) if construction begins before 2022, Section 3502 of the act would also eliminate the permanent 10 percent ITC currently in effect for solar energy and geothermal energy property and provides that the ITC will not be available for any solar energy property or geothermal energy property the construction of which begins after December 31, 2027.
As with the PTC, Section 3502 of the act provides that for ITC purposes, for all taxable years, in order to be treated as beginning construction, a continuous program of construction must be maintained until the facility is placed in service.
The proposals in Sections 3501 and 3502 with respect to the PTC and ITC, respectively, would reverse extenders legislation that was enacted at the end of 2015.
Section 3503: Extension and Phaseout of Residential Energy Efficiency Property
Pursuant to the act, the Code Section 25D 30 percent investment credit for residential energy efficiency property would be extended to property placed in service prior to January 1, 2022 (subject to a phase out for property placed in service during 2020 and 2021). Currently, only qualified solar electric property and qualified solar water heating property are eligible for the Code Section 25D credit through 2022, Section 3503 of the act would extend the credit for other types of qualifying energy efficiency property through 2022.
Under current law, U.S. citizens, resident individuals, and domestic corporations generally are taxed on all income, whether earned in the United States or abroad. However, U.S. parent corporations generally are not taxed on the income of their foreign corporate subsidiaries until the income is repatriated to the United States. When a foreign subsidiary's earnings are repatriated to the United States, the U.S. parent may be entitled to a credit for foreign income taxes paid by the foreign subsidiary, although such credits may not be sufficient to offset the parent's U.S. tax liability as a result of the repatriation.
The U.S. tax rules also provide that in certain circumstances, a U.S. parent corporation may be subject to tax on such income even if it is not repatriated, such as where the foreign subsidiary has earned so-called "subpart F income," or has invested its earnings in "United States property" within the meaning of Section 956 of the Code.
Title IV of the act contains several provisions that would dramatically change the U.S. tax landscape for multinational enterprises. A summary of certain key provisions contained in Title IV follows.
Sections 4001, 4002, 4101, and 4204: Proposed Participation Exemption
Section 4001 of the act provides that, effective for distributions made after 2017, U.S. corporations generally would be exempt from U.S. tax on the repatriated earnings of foreign corporations in which they own at least 10 percent of the combined voting power. The House Committee has stated that this exemption would "eliminate the 'lock-out' effect under current law" by permitting foreign subsidiaries to repatriate earnings without any U.S. tax cost. Section 4002 of the act also repeals the "deemed dividend" consequences of Code Section 956 where a foreign subsidiary of a U.S. parent corporation invests (or is treated as investing) in "United States property," such as where a foreign subsidiary guarantees the indebtedness of its U.S. parent.
Because the repatriation of foreign earnings to the United States would not be subject to U.S. tax, Section 4101 of the act would deny the U.S. parent any foreign tax credits with respect to any such repatriated amounts. In addition, consistent with the objective of permitting the repatriation of funds from foreign subsidiaries to the United States, Section 4204 of the act would make permanent the subpart F "look-thru" rule for dividends received by foreign subsidiaries from related foreign subsidiaries.
Notably, unlike the "participation exemptions" enacted in many foreign countries, the act generally would not exempt gain on the sale of interests in foreign entities from U.S. tax. For example, a U.S. corporation would continue to be subject to tax on gain recognized on its sale of a foreign subsidiary, except to the extent the gain is recharacterized as a dividend to the U.S. corporation (e.g., under current Section 1248 of the Code).
Section 4004: Transitional Tax on Deferred Foreign Income
As part of the transition into an international tax regime that exempts the repatriation of offshore earnings from U.S. tax, Section 4004 of the act would require a one-time "deemed repatriation" of certain foreign subsidiaries' accumulated offshore earnings. This deemed repatriation would be includible in the income of any "U.S. shareholders" of any "controlled foreign corporation," and would be treated as occurring in 2017 for foreign subsidiaries whose U.S. tax year is the calendar year. The U.S. tax on such deemed repatriation would depend on whether the related earnings have been retained in the form of cash or cash equivalents (which would be subject to tax at a 12 percent rate), or whether they have been reinvested in the applicable foreign subsidiary's business (which would be subject to tax at a 5 percent rate). At the election of the U.S. shareholder, the tax liability would be payable over a period of up to eight years in equal installments.
Sections 4301 and 4303: Measures Addressing "Base Erosion"
The act includes additional provisions designed to prevent so-called "base erosion."5 First, beginning after 2017, Section 4301 of the act would require a U.S. parent of one or more foreign subsidiaries that are "controlled foreign corporations" to include in income 50 percent of the U.S. parent's "foreign high returns," which are measured as the excess of the foreign subsidiaries' income over a routine return on their tangible property.6 As a result, U.S. parent corporations may be subject to tax on their foreign earnings regardless of how such earnings were generated (as compared to the currently effective subpart F regime, which generally examines the nature of the offshore earnings as active or passive, and which would remain in place). Thus, for example, where the earnings of a controlled foreign corporation are generated primarily through exploiting its intangible assets (such as foreign intellectual property), the U.S. parent would be subject to U.S. tax on a portion of such earnings on a current basis to the extent such earnings exceeded the specified return on the controlled foreign corporation's tangible property. U.S. parents would be permitted to claim a credit for foreign taxes paid with respect to such foreign high returns that are includible in their income, not to exceed 80 percent of the foreign taxes paid by the applicable foreign subsidiaries.
In addition, Section 4303 of the act would limit incentives for U.S. corporations that are members of large multinational groups to make deductible payments to their foreign affiliates by imposing a 20 percent excise tax on such payments made or accrued after 2018. Section 4303 of the act would also apply this excise tax to payments that are includible in costs of goods sold or in the basis of a depreciable or amortizable asset. There are several exceptions to this excise tax, such as where the applicable affiliates elect to treat the payments as subject to U.S. tax on a net income basis, or where the group, on an annual basis, does not make over $100 million in payments to which the excise tax could apply.
The initial version of the act also contained a provision that would have limited U.S. "treaty shopping"7 among foreign-parented groups. Under this provision, where a U.S. corporation and a foreign affiliate are controlled by a common foreign parent, any U.S. treaty benefits otherwise applicable to such payments would not be permitted to exceed the benefits that would be available if the payments were made to the common foreign parent. Although Chairman Brady's initial markup of the act deleted this provision, it is possible that a similar or related provision may be reintroduced later in the legislative process.
Wilson Sonsini Goodrich & Rosati will continue to monitor the progress of the Tax Cuts and Jobs Act as it makes its way through Congress.
For further information or to discuss any of the provisions described above, please contact Greg Broome (email@example.com, 415-947-2139); Nicole Gambino (firstname.lastname@example.org, 415-947-2117); Eileen Marshall (email@example.com, 202-973-8884); Sean Moran (firstname.lastname@example.org; 323-210-2916); Stuart Odell (email@example.com; 212-497-7711); Myra Sutanto Shen (firstname.lastname@example.org, 650-565-3815); Jonathan Zhu (email@example.com, 650-849-3388); or any member of the tax practice at WSGR.