United States: House Republicans Release (Simplified?) Tax Reform Bill

The House Republican's tax reform bill – the Tax Cuts and Jobs Act – was released today. This bill is 429 pages (this is simplifying?) and provides for extensive tax reform. The Senate version is about a week away. President Trump wants to sign the bill before the Thanksgiving holiday, but there are several unpopular provisions that will likely get push-back. For instance, the bill takes away itemized deductions for state and local income taxes, which will be wildly unpopular in states such as New York and California. We will keep you posted. In the meantime, a brief summary of key provisions follows.

Individual Income Tax Reform

• Reduces the number of tax brackets from 7 to 4 (12%, 25%, 35% and 39.6%), but the top tax rate remains the same.
• Repeals the alternative minimum tax.
• Doubles the standard deduction (for those that do not itemize deductions).
• Repeals personal exemption deductions (currently, $4,050 each for taxpayer, spouse, and any dependents).
• Provides for a lower 25% tax rate for individuals that earn their income through certain sole proprietorships, partnerships and S corporations. Generally, 30% of the income from these entities can qualify for this lower rate. 
• Repeals the adoption tax credit and the electric vehicle credit.
• Repeals the limitation on itemized deductions (the so-called Pease limitation that can limit itemized deductions to 80% for high earners).
• Limits the mortgage interest deduction to indebtedness up to $500,000 (as compared to $1 million currently).  In addition, the mortgage must be on the taxpayer's principal residence. This proposal repeals the deduction for mortgages on second homes or for home equity loans.
• Repeals itemized deductions for state and local income or sales tax, although individuals can itemize up to $10,000 of real property taxes. 
• Repeals deductions for personal casualty losses (from fires, storms, theft), although this does not apply where there is special disaster relief legislation.
• Increases the charitable contribution limitation from 50% to 60% of adjusted gross income for cash contributions to public charities and certain private foundations.
• Repeals deductions for tax preparation expenses, medical expenses, employee expenses, and moving expenses.
• Repeals deductions for alimony payments, although this is for agreements executed or modified after 2017.
• Increases the number of years (from 2 out of 5 years to 5 out of 8 years) that a taxpayer must live in a principal residence to qualify for the $500,000 exclusion from gain recognition on the sale of such residence. The bill also provides for a phase-out of this exclusion for taxpayers with adjusted gross income in excess of $500,000. 

Estate and Generation-Skipping Transfer Tax Reform

• Doubles the existing basic exclusion amount from $5 million to $10 million (adjusted for inflation).
• Repeals the estate and generation-skipping tax beginning after 2023.
• Note that the gift tax remains in place.

Business Tax Reform

• Reduces the corporate tax rate to a flat 20% (25% for personal services corporation).
• Allows corporations to fully and immediately expense 100% of the cost of qualified property acquired and placed in service after September 2017 and before January 1, 2023. 
• Increases the Section 179 expense amount from $500,000 to $5 million and the phase-out amount from $2 million to $20 million.
• Disallows deduction for net interest expense in excess of 30% of the business's adjusted taxable income (a comparable rule would apply to partnerships). 
• Repeals the Section 163(j) rule that can limit a corporation's ability to deduct interest expense if debt-to-equity ratio exceeds 1.5 to 1.
• Provides that taxpayers will only be able to take NOL carryovers or carrybacks to the extent of 90% of taxable income for that year, and repeals carrybacks in most cases. These rules will apply generally for losses arising in tax years after 2017.
• Provides that tax-free like-kind exchanges will only be available for real property.
• Amends the contribution to capital rules to provide that a corporation will recognize gain on contributions to the extent the amount contributed exceeds the value of the stock issued to the contributor. Similar rules will apply to partnerships.
• Repeals the deduction for entertainment expenses.
• Taxes gain or loss from the disposition of a self-created patent, invention, model, or secret formula as ordinary in character (currently capital in nature).
• Repeals the rule triggering a technical termination of partnerships where there is an exchange of 50% or more of the partnership interests within a 12 month period.
• Repeals the rehabilitation credit.
• Terminates the new markets tax credit, although credits that have already been allocated may be used.
• Modifications of many energy tax credits.
• Terminates preferential treatment of private activity bonds.  Any income on newly issued PABs (after 2017) will be taxable.
• Repeals tax credit bond rules.
• Provides any interest on bonds issued to construct or improve a professional sports stadium will be taxable.

International Tax Reform

• Provides for a 100% exemption on dividends paid by a foreign corporation to U.S. corporate shareholders that own at least 10% or more of the foreign corporation. This means that U.S. corporations can generally bring future earnings back into the U.S. tax-free.
• Repeals the tax imposed when untaxed foreign subsidiary earnings are reinvested in U.S. property.
• Provides for a one-time tax on earnings currently held offshore as a deemed-repatriation. The tax rate is 12% for any portion of earnings and profits that are cash or cash equivalents, and 5% for all other amounts. This tax can be paid over an 8 year period.
• Repeals the availability of certain foreign credits, including the Section 902 indirect foreign tax credit.
• Modifies Subpart F income in generally tax-favorable ways, including making permanent the current look-through rule that allows many controlled foreign corporations to avoid recognizing Subpart F income on passive income (e.g., dividends, royalties, rents) received from foreign related parties. 
• Introduces a new tax regime on U.S. shareholders with foreign high returns, designed to prevent erosion of the U.S. tax base.
• Adds an excise tax of 20% on payments (other than interest) made by U.S. corporations to related foreign corporations if the payment is deductible, includible in costs of goods sold, amortizable or depreciable. An exception is available if the U.S. company elects to pay at cost without a profit mark-up.

It should be noted that the reform proposal does not currently change the top tax rates for capital gains and dividends (20%) nor does it impact the Affordable Care Act's 3.8% net investment income tax imposed on high earners.

This House bill covers a lot of provisions, and these provisions will be subject to negotiation as the Senate moves forward with its own version of a tax reform bill. We will keep you updated as this process moves forward.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.