Business Tax Changes should be on your radar screen to discuss with your key clients this spring…
A large number of important tax changes go into effect this year. Many were ushered in by the Protecting Americans from Tax Hikes (PATH) Act of 2015, although legislation enacted earlier in 2015 and in 2014 also contributed a fair share. Still other changes are the result of various administrative pronouncements by IRS.
The recent legislation responsible for the lion’s share of the changed rules for 2016 consists of:
- The Protecting Americans from Tax Hikes (PATH) Act of 2015 (P.L. 114-113, 12/18/2015);
- The Fixing America’s Surface Transportation (FAST) Act (P.L. 114-94, 12/4/2015);
- The Bipartisan Budget Act of 2015 (P.L. 114-74, 11/2/2015);
- The Surface Transportation and Veterans Health Care Choice Improvement Act of 2015 (P.L. 114-41, 7/31/2015);
- The Trade Preference Extension Act of 2015 (P.L. 114-27, 6/29/2015); and
- The Achieving a Better Life Experience Act of 2014 (ABLE Act), part of the Tax Increase Prevention Act of 2014 (P.L. 113-295, 12/19/2014)
Enhancements for Sec. 179 expensing. For tax years beginning in 2014: (1) the dollar limitation on the expensing deduction under Code Sec. 179 was $500,000; and (2) the investment-based reduction in the dollar limitation began to take effect when property placed in service in the tax year exceeded $2 million (the investment ceiling). Under prior law, for tax years beginning after Dec. 31, 2014, the maximum expensing limit was to have dropped to $25,000, and the investment ceiling was to have dropped to $200,000. Up to $250,000 of qualified real property—qualified leasehold improvement property, qualified restaurant property, and qualified retail improvement property—was eligible for Code Sec. 179 expensing. Under a carryover limitation for qualifying real property, no portion of disallowed expensing because of the active business taxable income limit in Code Sec. 179(b)(3)(A), could be carried to a tax year beginning after 2014.
Under the PATH Act, the $500,000 expensing limitation and $2 million investment ceiling amount are retroactively extended and made permanent. (Code Sec. 179(b)) Additionally, the PATH Act makes other Code Sec. 179 changes, including the following enhancements that apply for tax years beginning after 2015:
- Both the $500,000 expensing limit, and the $2 million investment ceiling amount are indexed for inflation. (Code Sec. 179(b)(6))
- Expensing of qualified real property is made permanent without a carryover limitation (Code Sec. 179(f)(1) and Code Sec. 179(f)(4)) and the $250,000 expensing limitation that applied to qualifying real property under prior law is eliminated. (Code Sec. 179(f), as amended by Act Sec. 124(c))
- Air conditioning and heating units are newly eligible for expensing. (Code Sec. 179(d)(1))
De minimis expensing safe harbor for taxpayers with no AFS raised to $2,500. Final tangible property regs permit businesses to elect to expense their outlays for “de minimis” business expenses. If the taxpayer is eligible for the de minimis safe harbor election, and chooses it, an amount paid to acquire or produce any eligible unit of property (or any eligible material or supply) is deducted under Code Sec. 162 in the year paid or incurred.
Under the regs, the de minimis safe harbor applies to an amount paid during the tax year to acquire or produce a unit of property (UOP), or acquire a material or supply, only if:
- The taxpayer has, at the beginning of the tax year, written accounting procedures treating as an expense for non-tax purposes amounts paid for property (1) costing less than a specified dollar amount; or (2) with an economic useful life of 12 months or less;
- The taxpayer treats the amount paid for the property as an expense on its applicable financial statement (AFS, such as a financial statement required to be filed with the Securities and Exchange Commission or a certified audited financial statement accompanied by an independent CPA’s report and used for credit or reporting purposes) if it has one – or on its books and records if it does not – in accordance with its accounting procedures; and
- If the taxpayer has an AFS, the amount paid for the property does not exceed $5,000 per invoice (or per item as substantiated by the invoice), or if the taxpayer does not have an AFS, does not exceed $500 per invoice (or per item as substantiated by the invoice), or other amount as identified in published IRS guidance. (Reg. § 1.263(a)-1(f)(1)(i), Reg. § 1.263(a)-1(f)(1)(ii))
Assets expensed under the de minimis safe harbor election may be deducted in the year of purchase, assuming that the costs that otherwise qualify as ordinary expenses, and assuming the costs don’t have to be capitalized under the UNICAP rules of Code Sec. 263A.
In Notice 2015-82, 2015-50 IRB, IRS increased the Reg. § 1.263(a)-1(f)(1)(ii)(D) de minimis safe harbor limitation for a taxpayer without an AFS from $500 to $2,500. (The limit for taxpayers with an AFS remains at $5,000.) This increase is effective for costs incurred during tax years beginning on or after Jan. 1, 2016, but use of the new threshold won’t be challenged in tax years prior to 2016.
More building improvements eligible for bonus depreciation. Under prior law, qualified leasehold improvement property qualified for bonus depreciation. Such property included any improvement to an interior portion of a building that was nonresidential real property, if (1) the improvement was made under or pursuant to a lease; (2) the interior building portion was to be occupied exclusively by the lessee or sublessee; (3) the improvement was placed in service more than 3 years after the date the building was first placed in service by any person (i.e., not necessarily the taxpayer) and (4) the improvement was a structural component of the building. However, qualified leasehold improvement property didn’t include any improvement for which the expense was attributable to (a) enlargement of the building, (b) any elevator or escalator, (c) any structural component benefiting a common area, or (d) the internal structural framework of the building.
Under the PATH Act, qualified leasehold improvement property is no longer eligible for bonus depreciation. Instead, for property placed in service after Dec. 31, 2015, “qualified improvement property” is eligible for bonus depreciation.
Qualified improvement property is any improvement to an interior portion of a building that is nonresidential real property if the improvement is placed in service after the date the building was first placed in service. (Code Sec. 168(k)(3)(A)) But qualified improvement property doesn’t include any improvement for which the expense is attributable to: the enlargement of the building; any elevator or escalator; or the internal structural framework of the building. (Code Sec. 168(k)(3)(B))
Thus, the PATH Act liberalizes the rules in three ways: (1) building improvements are eligible for bonus depreciation regardless of whether the improvements are property subject to a lease; (2) the improvement need not be placed in service more than three years after the date the building was first placed in service; and (3) structural components of a building that benefit a common area are no longer excluded from the definition of qualified improvements.
Relaxed placed in service rule for claiming bonus depreciation on certain plants. Under the PATH Act, for specified plants planted or grafted after Dec. 31, 2015, and before Jan. 1, 2020, bonus depreciation is allowed when the plant is planted or grafted, rather than when placed in service. (Code Sec. 168(k)(5)) A specified plant is one planted or grafted in the U.S., that is: any tree or vine that bears fruits or nuts; or any other plant that will have more than one yield of fruits or nuts and generally has a pre-productive period of more than two years from the time of planting or grafting to the time at which the plant bears fruit or nuts. (Code Sec. 168(k)(5)(B))
Research credit of eligible small business may offset AMT as well as regular tax. For credits determined for tax years that begin after Dec. 31, 2015, eligible small businesses (ESBs) may claim the credit against their alternative minimum tax (AMT) liability as well as their regular tax liability. (Code Sec. 38(c)(4)(B)(ii))
An ESB is, with respect to any tax year: a nonpublicly traded corporation, a partnership, or a sole proprietorship whose average annual gross receipts for the 3-tax-year period preceding the tax year does not exceed $50 million. (Code Sec. 38(c)(5)(C))
Research credit of qualified small business may offset payroll tax. For tax years that begin after Dec. 31, 2015, qualified small businesses may elect to claim a portion of their research credit as a payroll tax credit against their employer FICA tax liability, rather than against their income tax liability. (Code Sec. 41(h) and Code Sec. 3111(f))
A qualified small business is one that, in the case of a corporation or partnership, with respect to any tax year:
- Has gross receipts (as determined under the rules of Code Sec. 448(c)(3), without regard to Code Sec. 448(c)(3)(A)) of less than $5 million, and
- Did not have gross receipts (as determined in (1), above) for any tax year preceding the 5-tax-year period ending with the tax year. (Code Sec. 41(h)(3)(A)(i))
An individual can qualify if he meets the two conditions above, taking account the aggregate gross receipts received by the individual in carrying on all his trades or businesses. (Code Sec. 41(h)(3)(A)(ii)) Special aggregation rules apply. And an organization exempt from tax can’t be a qualified small business. (Code Sec. 41(h)(3)(B))
The payroll tax credit portion is equal to the least of:
- An amount specified by the taxpayer that does not exceed $250,000,
- The research credit determined for the tax year, or
- In the case of a qualified small business other than a partnership or S corporation, the amount of the business credit carryforward under Code Sec. 39 from the tax year (determined before the application of Code Sec. 41(h) to the tax year). (Code Sec. 41(h)(2))
The election can’t be made for a tax year if the taxpayer has made such an election for five or more preceding tax years. (Code Sec. 41(h)(4)(B)(ii)) For a partnership or S corporation, an election to apply the credit against OASDI liability is made at the entity level. (Code Sec. 41(h)(4)(C))
The payroll tax portion of the research credit is allowed as a credit against the qualified small business’s OASDI tax liability for the first calendar quarter beginning after the date on which it files its income tax or information return for the tax year. The credit can’t exceed the OASDI tax liability for a calendar quarter on the wages paid with respect to all employees of the qualified small business. If the payroll tax portion of the credit exceeds the qualified small business’s OASDI tax liability for a calendar quarter, the excess is allowed as a credit against the OASDI liability for the following calendar quarter. (Code Sec. 3111(f))
Liberalized rules for food inventory enhanced deduction. A taxpayer engaged in a trade or business is eligible to claim an enhanced deduction for donations of food inventory. The enhanced deduction equals the lesser of (a) basis plus half of the ordinary income that would have been recognized if the property were sold at fair market value (FMV) at the contribution date, or (b) twice the property’s basis. A contribution of food inventory that is apparently wholesome food—i.e., meant for human consumption and meeting certain quality and labeling standards—qualifies for the enhanced deduction. For a taxpayer other than a C corporation, the aggregate amount of contributions of apparently wholesome food that may be taken into account for the tax year can’t exceed 10% of the taxpayer’s aggregate net income for that tax year from all trades or businesses from which those contributions were made for that tax year. A corporation’s deductions for charitable contributions can’t exceed 10% of its taxable income as specially computed.
The PATH Act retroactively and permanently extended the apparently wholesome food contribution rules. (Code Sec. 170(e)(3)(C)(iv), as amended by Act Sec. 113(a)) Additionally, for tax years beginning after Dec. 31, 2015, the PATH Act also liberalized the rules for such contributions, as follows:
- The fair market value (FMV) of apparently wholesome food that cannot or will not be sold solely by reason of internal standards of the taxpayer, lack of market, or similar circumstances is determined without regard to such internal standards, etc. FMV is determined by taking into account the price at which the same or substantially the same food items—as to both type and quality—are sold by the taxpayer at the time of the contribution. If the items have been discontinued, the price comparison is made to the price at which the taxpayer sold the items in the recent past. (Code Sec. 170(e)(3)(C)(v)).
- For taxpayers other than C corporations, the limitation on deductible contributions of food inventory increases to 15% of the taxpayer’s aggregate net taxable income from all trades or businesses from which such contributions were made. For C corporations, food inventory contributions are subject to a limitation of 15% of taxable income as specially computed. (Code Sec. 170(e)(3)(C)(ii)) Although a C corporation’s charitable deduction for contributions of food inventory isn’t subject to the general corporate 10%-of-taxable-income limit, that 10% limit is reduced—but not below zero—by the amount of the corporation’s allowable food inventory contributions. (Code Sec. 170(e)(3)(C)(iii)(II))
- Taxpayers who do not account for inventories using full absorption costing and who are not required to capitalize indirect costs under the Code Sec. 263A UNICAP rules may elect to treat the basis of any apparently wholesome food as being equal to 25% of the market value of the food, in determining the amount of the charitable contribution deduction under Code Sec. 170(e)(3)(B). (Code Sec. 170(e)(3)(C)(iv))
More employers eligible for differential wage payment credit. Eligible small business employers that pay differential wages—payments to employees for periods that they are called to active duty with the U.S. uniformed services (for more than 30 days) that represent all or part of the wages that they would have otherwise received from the employer—can claim a credit. This differential wage payment credit is equal to 20% of up to $20,000 of differential pay made to an employee during the tax year. Under prior law, an eligible small business employer was one that: (1) employed on average less than 50 employees on business days during the tax year; and (2) under a written plan, provides eligible differential wage payments to each of its qualified employees. A qualified employee is one who has been an employee for the 91-day period immediately preceding the period for which any differential wage payment is made.
The PATH Act not only retroactively and permanently extended the credit (which had expired at the end of 2014), but liberalized it as well. For tax years beginning after Dec. 31, 2015, the credit applies to employers of any size (i.e., the less than 50 employee average no longer applies). (Code Sec. 45P(a))
Work opportunity tax credit expanded. The work opportunity tax credit (WOTC) allows employers who hire members of certain targeted groups to get a credit against income tax of a percentage of wages. The credit varies by targeted group.
The PATH Act retroactively extended the WOTC for five years so that it applies to eligible veterans and non-veterans who begin work for the employer on or before Dec. 31, 2019. (Code Sec. 51(c)(4)(B), as amended by Act Sec. 142(a)) Additionally, effective for individuals who begin work for an employer after Dec. 31, 2015, the WOTC also applies to employers who hire workers who are members of a new targeted group—qualified long-term unemployed individuals (i.e., those who have been unemployed for 27 weeks or more). (Code Sec. 51(d)(15))
Live theatrical productions qualify for expensing. Under the PATH Act, for productions beginning after Dec. 31, 2015 and before Jan. 1, 2017, the Code Sec. 181 expensing election for qualified film and TV productions is expanded to also apply to any “qualified live theatrical production,” which is defined as a live staged production of a play (with or without music) which is derived from a written book or script and is produced or presented by a commercial entity in any venue which has an audience capacity of not more than 3,000, or a series of venues, the majority of which have an audience capacity of not more than 3,000. In addition, qualified live theatrical productions include any live staged production which is produced or presented by a taxable entity no more than 10 weeks annually in any venue which has an audience capacity of not more than 6,500. (Code Sec. 181)
Moratorium on medical device excise tax. Under the PATH Act, the 2.3% excise tax imposed on the sale of medical devices will not apply to sales during calendar years 2016 and 2017. (Code Sec. 4191(c))
Related party loss rules tightened. Under the Code Sec. 267(a) related party loss rules, no deduction is generally allowed for losses from sales or exchanges of property (except in corporate liquidations), directly or indirectly, between certain related persons. Under Code Sec. 267(d), if a taxpayer acquires property by purchase or exchange from a transferor who sustained a loss not allowed because of the related taxpayer rules, any gain realized by the taxpayer on a sale or other disposition of the property is recognized only to the extent that the gain exceeds the amount of the loss that is properly allocable to the property sold or otherwise disposed of by the taxpayer.
Under the PATH Act, for sales and exchanges of property acquired after Dec. 31, 2015, the general rule of Code Sec. 267(d) doesn’t apply to the extent gain or loss on property that has been sold or exchanged is not subject to Federal income tax in the hands of the transferor immediately before the transfer, but any gain or loss on the property is subject to Federal income tax in the hands of the transferee immediately after the transfer. (Code Sec. 267(d)) Thus, the related party loss rules are modified to prevent losses from being shifted from a tax-indifferent party (e.g., a foreign person not subject to U.S. tax) to another party in whose hands any gain or loss with respect to the property would be subject to U.S. taxation.
Alternative tax rate for corporate timber gains. Effective for tax years beginning in 2016, the PATH Act provides that a corporation is subject to a 23.8% alternative tax rate on the portion of its taxable income that consists of qualified timber gain (or, if less, the net capital gain) for a tax year. (Code Sec. 1201(b)(1)) Qualified timber gain means the net gain described in Code Sec. 631(a) and Code Sec. 631(b) for the tax year, determined by taking into account only trees held more than 15 years. (Code Sec. 1201(b)(2))