By Herman Spence III

Below are selected planning points regarding recent tax changes. This summary does not discuss which provisions are temporary and which are permanent.

A. Bunching Into One Year Charitable Contributions That Would Otherwise Be Made Over Several Years

The new tax law raises the standard deduction to $24,000 for married couples filing jointly. Only $10,000 of state income taxes and property taxes may be deducted. Many expenses that were previously deductible, including investment management expenses and employee expenses, are no longer deductible. Many individuals will now use the $24,000 standard deduction rather than itemizing deductions. Such a taxpayer will, in effect, lose the deductibility of charitable contributions. Some taxpayers may be able to mitigate that by making in a single year charitable contributions they would normally make over several years. Such a taxpayer may have itemized deductions exceeding $24,000 in the year in which charitable contributions are bunched.

B. No Deduction For Amounts Paid For College Athletic Seating Rights

Under the new act, no charitable deduction is allowed for any payment to an institution of higher education for which the payor receives the right to purchase tickets or seating at an athletic event. See IRC § 170(l). Contributors should consider waiving all rights to preferential tickets and seating.

C. Alimony Is Not Deductible

For divorce and separation agreements executed after 2018, alimony and separate maintenance payments are not deductible by the payor and are not included in the income of the payee. See Former IRC § 215, § 61(a)(8), and § 71. One should take that nondeductibility into account in negotiating alimony and property settlements. Because the change is effective for agreements entered into after this year, the timing of agreements will have important tax consequences.

D. Entertainment Expenses Are Not Deductible

Under the new law, deductions for entertainment expenses are disallowed. Businesses should take such nondeductibility into account in determining whether a particular entertainment expense is prudent. The 50% limit on the deductibility of business meals other than entertainment is retained.

E. Individuals Cannot Deduct Investment And Employee Expenses

Expenses previously deductible as miscellaneous itemized deductions are no longer deductible.

1. Employers can pay business expenses that would otherwise be paid by employees. For business expenses that would otherwise be borne by employees, it is more tax efficient for the employer to pay and deduct the expenses and to take such cost into account in fixing the employees’ compensation.

2. Investors will benefit from a fund manager’s fees being restructured as a partnership allocation. An individual investor cannot deduct management fees and other investment expenses. That will be mitigated to the extent a manager’s fees are reduced and its allocation of partnership income is increased pursuant to a properly structured profits or carried interest.

3. Expenses are deductible if the fund is engaged in a business. If a fund is engaged in business as a trader of securities (as some hedge funds are) or as a lender (as some mezzanine funds are), individual investors can deduct fees and other costs as business expenses.

F. Avoiding Nondeductible Settlement Payments

1. No deduction for amounts paid for sexual harassment subject to nondisclosure agreements. Under the new law, no deduction is allowed for any settlement, payout, or attorney’s fees related to sexual harassment or sexual abuse if such payments are subject to a nondisclosure agreement. See IRC § 162. In structuring and negotiating settlement agreements that involve allegations of sexual harassment, clients should consider whether the benefit of a nondisclosure covenant outweighs the detriment of nondeductibility. Alternatively, clients may attempt to enter into a separate settlement agreement for sexual harassment claims or allocate most of the payment to other types of claims.

2. Minimize nondeductible penalties and fines by allocations to restitution. The new law expands categories of payments that are nondeductible. No deduction is allowed for any payment to, or at the direction of, a government or specified nongovernmental entity in relation to the violation of any law or the investigation into the potential violation of any law. An exception applies to payments for restitution (including remediation of property) or amounts required to come into compliance with any law that are identified in the court order or settlement agreement as restitution, remediation, or required to come into compliance. See IRC § 162(f). Under the new law, payments such as equitable disgorgement to either the SEC or DOJ as part of a Foreign Corrupt Practice Act and any amount in excess of single damages are not deductible. In negotiating settlement agreements and court orders, we should maximize amounts described as restitution.

G. Changes To $1 Million Per Year Limit On Deductible Compensation Paid By Publicly Traded Companies To Covered Employees

The new law (a) eliminates the exemption for performance-based compensation, (b) expands covered employees to include the principal executive officer, principal financial officer, and the three highest compensated officers other than the first two listed, and (c) expands the definition of covered employee to include in perpetuity any individual who was a covered employee for any year after 2016. See IRC § 162(m).

1. Avoid modifying grandfathered agreements. The new rules do not apply to compensation provided by a written binding contract in effect on November 2, 2017 that is not materially modified. Employers should take care not to modify such contracts in a manner that may cause performance-based compensation that would otherwise be deductible to become nondeductible.

2. Avoid unnecessarily causing an executive to be one of the highest three compensated officers in a particular year. Under the new law, anyone who has ever been a covered employee in any year after 2016 will always be a covered employee. Employers should manage the compensation of executives to avoid unnecessarily causing an executive to be one of the three highest compensated officers in a particular year. For example, signing bonuses and other special one-time compensation should perhaps not be paid in a single year.

3. Revising or eliminating performance-based compensation and related procedures. Given the exception for performance-based compensation has been repealed, employers should consider whether to eliminate or change compensation structures and procedures that were adopted to satisfy the exception.

H. Tax-Exempt Entities Subject To 21% Excise Tax For Compensation Above $1 Million Per Year

Under the new act, a tax-exempt organization is subject to a 21% tax for compensation paid to a covered employee in excess of $1 million per year. Covered employees are the five highest compensated employees of the organization for the tax year plus anyone who was a covered employee of the organization in any year after 2016. Remuneration paid by related organizations is generally taken into account. The tax also applies to excess parachute payments, which are severance-type compensation equal to or more than three times the covered employee’s average annual compensation over a specified look-back. The tax applies to deferred compensation in many cases when it vests, whether or not paid. The tax does not apply to compensation to licensed medical professionals for medical services. See IRC § 4960.

Entities exempt under Section 501(a) and governmental entities whose income is excluded under Section 115(1) (generally governmental entities that do not have sovereign powers such as eminent domain, the police power, or the power to tax) are subject to the tax. It may be unclear whether a state university is subject to the tax. Section 115 should not apply to a state university that has eminent domain or other sovereign powers. Perhaps the tax applies to a state university that has sovereign powers and would be exempt without obtaining a determination of exemption under Section 501(c)(3) but has nevertheless obtained such a determination from the IRS.

I. Deferral Election For Qualified Equity Grants

The tax act permits a private company to offer its rank and file employees the opportunity to defer tax on certain stock options and restricted stock units for up to five years. For this deferral to be available, the employer must have a written plan under which at least 80% of all employees are granted stock options or units with the same rights and privileges. The deferral is not available to any individual who is a 1% owner at any time during the year or during the prior 10 years, a current or former CEO or CFO, or certain highly compensated officers. If an employee makes the election, the employer’s deduction is deferred until the year in which the employee is taxable. For the election to apply, no stock of the employer may be readily tradeable on an established securities market during any preceding year. See IRC § 83(i).

1. The deferral provision will probably be seldom used. The requirements and limitations of the provision are complicated and difficult. Making equity available to 80% or more of the company’s employees may raise securities law and other concerns. The provision is probably most valuable to start-ups.

2. Companies must comply with notice and reporting requirements. Companies can apparently not opt out of the new rules. If a private company’s equity compensation program meets the eligibility requirements of the new provision, the company must comply with certain notice and reporting requirements to avoid penalties.

3. Obtaining the employees’ agreement not to make the election. As described above, an employer is apparently required to provide notice of the deferral right even if the employer does not want employees to make the deferral. Perhaps such employers should include a provision in the grant or plan obtaining the employees’ agreement not to make the election.

J. Real Estate

1. 20% deduction for qualified business income. Under the act, individuals, trusts, and estates may deduct as much as 20% of qualified business income that is allocable to a qualifying real estate trade or business. The deduction generally does not apply to capital gains, interest, dividends and other investment related income. The deduction, however, applies to REIT ordinary dividends, including dividends from mortgage REITs. This deduction is discussed in more detail in Section L below.

2. Three-year holding period for carried interests. Where a sponsor or other person receives a carried interest in connection with the performance of services, gain from the sale of partnership assets held less than three years or from the sale of the carried interest itself will not qualify for long-term capital gain treatment. This issue is discussed in more detail in Section R below.

3. Limit on business interest deduction. The tax act generally disallows the deductibility of interest to the extent the net interest expense exceeds 30% of EBITDA (through 2021) or EBIT (beginning in 2022). A real property trade or business can elect out of the new business interest rules, but making the election results in real property depreciation periods becoming longer and in the loss of the ability to expense immediately qualified improvement property. These rules are discussed in more detail in Section N below.

4. Limit on business losses. Under the new law, real estate investors generally cannot use operating losses from real estate businesses to shelter more than $500,000 (in the case of joint filers) of their passive non-real estate income, such as dividends, interest, and gain from the sale of passive non-real estate investments. This issue is discussed in more detail in Section O below.

5. Like-kind exchange not available for personal property. Beginning this year, like-kind exchange treatment is limited to exchanges of U.S. real property for other U.S. real property. Exchanges of personal property no longer qualify for deferral under Section 1031. In structuring exchanges, clients should minimize allocations to personal property to the greatest extent reasonable.

6. Sellers of partnership or LLC interests generally need to provide an affidavit of non-foreign status. Under the new law, the transferee of a partnership or LLC interest must withhold 10% of the amount realized unless the transferor certifies it is not a non-resident alien individual or foreign corporation. See IRC § 1446(f). Affidavits of non-foreign status should now be standard for transactions involving sales of partnership interests, as they have been for real estate sales for many years. This issue is discussed in more detail in Sections K(3) and (4) below.

7. REITs will be the favored structure for mortgages. As described above, REIT ordinary dividends qualify for the 20% deduction for qualified business income. Even though investment interest is not qualified business income, ordinary dividends from a mortgage REIT qualify for the deduction.

8. REIT dividends are not subject to the wage/capital limit for the 20% deduction. As discussed above, ordinary REIT dividends qualify for the 20% deduction. However, unlike other pass-through income, the wage/capital limit does not apply. That may provide a significant incentive for individuals to own real estate interests through REITs.

K. Partnerships And S Corporations

1. Repeal of partnership technical terminations. Under the tax act, partnerships are no longer treated as terminating if there is a sale or exchange of 50% or more of the total interest in partnership capital and profits within any 12-month period. See Former IRC § 708(b)(i). Some partnership and LLC agreements provide transfers of interests are not permitted if they would cause a technical termination of the entity. Those provisions are no longer needed.

(a)        Allocation of income for year of sale. Where an acquired partnership or LLC continues to have more than one owner, it will continue to be classified as a partnership and its taxable year will not close as a result of the acquisition. It will be important for the buyers and sellers to negotiate how income or loss for the year of the sale will be allocated among them (i.e., closing of the books or daily proration).

(b)        Maintaining target’s status as a partnership to avoid restarting depreciation periods for real estate. If a transaction would normally involve a single buyer of all LLC’s interests, and the LLC owns significant depreciable real property but little personal property, it might be advantageous for a related party to acquire a 1% or similar interest to continue the LLC’s existence for tax purposes. That would apparently avoid restarting depreciation periods for the real property. A Section 754 election would be necessary for the basis of the LLC’s assets to be stepped-up. It may be unclear whether 100% cost recovery is available for equipment owned by the LLC to the extent of the Section 743 adjustment.

2. Treatment of S corporations converted to C corporations. Under the new law, distributions from an eligible terminated S corporation are treated as paid from its S corporation accumulated adjustments account and C corporation earnings and profits on a pro rata basis. Resulting adjustments are taken into account over six years. An eligible terminated S corporation is a corporation that (a) was an S corporation on the day before the enactment of the tax act, (b) revoked its S corporation within two years after the enactment date, and (c) had the same owners on the enactment date and on the revocation date and who owned stock in the same proportions on those dates. See IRC § 1371(f) and § 481(d).

3. Sellers of partnership or LLC interests will generally need to provide an affidavit of non-foreign status. Under the act, the transferee of a partnership or LLC interest generally must withhold 10% of the amount realized unless the transferor certifies it is not a nonresident alien individual or foreign corporation. See IRC § 1446(f). The new rule generally adopts the approach that has applied to sales of real estate for many years. The new rule applies to a partnership engaged in a U.S. business regardless of whether it owns real estate. This withholding rule is related to the new law subjecting foreign sellers of partnership interests to U.S. tax to the extent the partnership is engaged in a U.S. business (which overturns an important case from last year). Although the issue is uncertain, the rules probably apply to redemptions as well as sales of partnership interests. Affidavits of non-foreign status should now be standard for transactions involving sales of partnership interests, as they have been for real estate sales for many years. Because the amount realized includes the transferor’s share of partnership liabilities, it may be necessary to involve the partnership to determine the 10% withholding amount.

4. Partnerships and LLCs should condition sales of interests on the seller’s providing an affidavit of non-foreign status and the parties’ holding the entity harmless from withholding obligations. If a purchaser of an interest does not satisfy the withholding obligation described in the preceding paragraph, the partnership may have to withhold on distributions to the transferor. To avoid that complexity, a partnership or LLC should perhaps condition its consent to the transfer on the transferor’s providing an affidavit of non-foreign status and on both the transferor and transferee holding the partnership or LLC harmless from any withholding obligation.

L. 20% Deduction For Qualified Business Income

Under the act, an individual, trust, or estate may generally deduct 20% of domestic business income from a partnership, S corporation, or sole proprietorship. The deduction generally equals the lesser of (a) 20% of the taxpayer’s qualified business income plus 20% of the taxpayer’s qualified REIT dividends and qualified publicly traded partnership dividends or (b) 20% of the taxpayer’s taxable income over net capital gain. For taxpayers whose taxable income exceeds certain thresholds ($315,000 for joint filers), the deduction is limited for each qualified business to the greater of (a) 50% of the taxpayer’s allocable share of W-2 wages paid in the business or (b) the sum of 25% of W-2 wages paid plus a capital component equal to 2.5% of the unadjusted tax basis of the business’ tangible depreciable assets. Thus, the maximum effective rate on such income is 29.6% (i.e., 37% maximum individual rate times 80%). The deduction generally does not apply to capital gains, interest, dividends and other investment related income. The deduction does apply, however, to REIT ordinary dividends. See IRC § 199A.

Qualified business income does not include salaries and guaranteed payments to a partner for services. The deduction is generally not available for specified service businesses, including law, accounting, healthcare, investment-type activities, and other businesses where the principal asset is the reputation or skill of one or more employees (although engineering and architecture do qualify). The service business exclusion does not apply where a taxpayer’s taxable income does not exceed $315,000 for individuals filing jointly. The benefit of the deduction for service businesses is phased out over the next $100,000 of taxable income for joint fillers (i.e., from $315,000 to $415,000).

If an individual has qualified items of income and deduction in one business of less than zero, that loss reduces the taxpayer’s qualified income from other businesses. If an individual’s qualified items from all businesses are less than zero, that loss carries forward to the next year.

The 20% deduction is apparently not taken into account in determining self-employment taxes and the 3.8% Medicare Tax under Section 1411.

1. The provision disadvantages employees. For example, assume three workers have similar duties in a successful manufacturing business. One owns the business. The second manages the business as an officer. The third provides management services as an independent contractor (because she has other clients and has her own office). The second worker, as an employee, does not receive the deduction. The first and third managers may receive the deduction (perhaps subject to the wage/capital limit depending on the facts).

The provision also disadvantages an active owner compared to a passive one. An active owner does not receive the deduction as to salary, other compensation, and guaranteed payments but may receive it as to net income that flows through to her. A passive owner who does not work in the business may receive the deduction as to all her allocated income.

2. Reduce salaries and guaranteed payments to owners. Owners do not receive the 20% deduction as to salaries, other compensation, and guaranteed payments from partnerships. It may be feasible to reduce such compensation to owners and thereby increase their qualified business income.

3. Make employees owners or independent contractors. For workers to be entitled to the 20% deduction, they could become independent contractors or partners in the business. A corporation could drop its business into an LLC subsidiary and grant profits interests to employees. Such restructuring, of course, raises many business issues.

4. If the wage/capital limit would reduce the 20% deduction, there may be an incentive to restructure independent contractor relationships as employees.

5. Mortgage interest passed through by a REIT qualifies for the deduction. Although interest income does qualify for the deduction unless it is effectively connected with a U.S. business, qualified dividends paid by a REIT do.

6. The wage/capital limit does not apply to qualified REIT dividends or qualified publicly traded partnership income. That creates an incentive in some cases to operate a business as a REIT or PTP.

M. Accelerated Cost Recovery

1. 100% cost recovery for qualifying business assets. A 100% deduction for adjusted basis is allowed for qualified property acquired and placed in service after September 27, 2017 and before 2023. Qualified property generally includes software, tangible property with a recovery period of twenty years of less, and qualified improvement property. This additional first-year depreciation deduction is allowed for used property as well as new property. The first-year bonus depreciation deduction phases down between 2023 and 2027. See IRC § 168(k).

2. Increased Section 179 expensing. Under the new law, the maximum amount a taxpayer may expense is increased to $1 million, and the phase-out threshold is increased to $2.5 million. Qualified real property is expanded to include certain personal property used predominately to furnish lodging and to improvements to nonresidential real property including roofs, heating, ventilation, air conditioning, and fire protection systems. See IRC § 179.

3. Recovery period for qualified improvement property shortened. Under the new law, qualified improvement property is generally depreciable over 15 years using the straight-line method and half-year convention. MACRS recovery periods for residential rental and nonresidential real property remain and 27.5 at 39 years, respectively. The ADS recovery period is shortened from 40 years to 30 years for residential rental property, is 40 years for nonresidential real property, and is 20 years for qualified improvement property. See IRC § 168.

N. Limit On Business Interest

            Under the new law, a business is generally subject to a disallowance of net interest expense in excess of 30% of the business’ taxable income increased by deductions for interest, non-business items, and the 20% deduction for qualifying business income. For years before 2022, adjusted taxable income is also computed without regard to deductions for depreciation and amortization (i.e., EBITDA until 2021 and EBIT thereafter). Business interest expense does not include investment interest of non-corporate entities. In the case of pass-through entities, the determination is made at the entity level. Amounts disallowed are carried forward indefinitely. See IRC § 163(j).

1. Exception for small businesses. The limitation generally does not apply to taxpayers with average annual gross receipts for the prior three years of not more than $25 million (determined by taking into account the gross receipts of certain related parties), as determined under Section 448(c).

2. Electing real property exception. Real property trades or businesses can elect out of the interest limit if they use ADS to depreciate applicable real property. In that case, real property businesses will depreciate residential rental real property over 30 years rather than 27.5 years and commercial real property over 40 years rather than 39 years, and cannot immediately write off qualified improvement property.

O. Limit On Excess Active Business Losses

Non-corporate taxpayers are not entitled to deduct excess business losses. An excess business loss is the excess of aggregate deductions attributable to the taxpayer’s trades and businesses over the aggregate gross income of the taxpayer plus a threshold amount, which is $500,000 for joint filers. Losses from passive activities under Section 469 are not included. Excess business losses are carried forward and treated as part of the taxpayer’s net operating loss carryforward in subsequent years. In the case of partnerships and S corporations, the provision applies at the partner or shareholder level. See IRC § 461(l). The effect of the provision is to limit a taxpayer’s use of non-passive business losses to offset other types of income.

P. Limits On NOLs

            Under the new law, NOLs arising after 2017 cannot be carried back but may be carried forward indefinitely. The NOL deduction is limited to 80% of taxable income. See IRC § 172.

Q. Loan Agreements

1. Foreign subsidiaries should continue not to guarantee the debt of U.S. parents. Given the significant changes to U.S. international taxation, it is surprising the CFC rules were not changed so a guarantee by a foreign subsidiary does not result in a deemed taxable dividend to the U.S. parent. Because such Section 956 rules were not changed, it is generally appropriate for loans to continue to be structured so foreign subsidiaries do not guarantee debt of U.S. members of the group, and the group does not pledge more than two-thirds of the stock of foreign subsidiaries. Some lenders may challenge that given the 100% deduction for dividends available to some corporate shareholders, as described in Section S(1) below.

2. Lenders may want to reduce permitted tax distributions. Loan agreements often permit LLCs, S corporations, and other flow-through borrowers to make tax distributions based on the highest individual income tax rate. In the past there was a relatively small difference between the highest individual rate and corporate rate. Given there is now a much larger difference between the top individual rate of 37% and corporate rate of 21%, lenders may want to revisit the use of the highest individual rate. At a minimum, lenders may require the 20% deduction for qualified business income to be taken into account, which, in effect, reduces the top individual rate from 37% to 29.6%.

R. Three-Year Holding Period For Long-Term Capital Gains For Carried Interests

The act extends the holding period to three years for long-term capital gain recognized by service providers as to applicable partnership interests. An applicable partnership interest is any interest in a partnership that is transferred to an individual in connection with the performance of substantial services in an applicable trade or business. An applicable trade or business is any activity that consists in whole or part of raising or returning capital and either investing in or developing specified investment assets, including real estate. That definition includes essentially all investment funds. Such treatment applies regardless of whether the carried interest was issued before the enactment of the new law. That an individual recognized income upon receiving the carried interest or that a Section 83(b) election was made does not prevent the application of the new rules. See IRC § 1061.

The new law is probably not significant for hedge funds that generally do not own assets long enough to meet even the normal one-year holding requirement. Similarly, the new law will generally not impact a private equity fund that holds investments more than three years. However, a fund’s making an add-on investment may be more likely not to satisfy the three-year holding requirement. Managers may have a conflict of interest in deciding whether to sell a fund asset before the fund has held it for three years.

A direct or indirect transfer of an applicable partnership interest to a family member or other service provider will cause the transferor to recognize at ordinary rates the portion of the gain attributable to assets not held for more than three years. That will apparently not be the result if the transferor has held the interest for more than three years and transfers the interest to an unrelated party.

1. Holding carried interests through S corporations may avoid the new rule. An applicable partnership interest does not include an interest in a partnership held by a corporation. Thus, apparently interests held by S corporations are not subject to the new law.

2. The new law does not apply to capital interests held by managers. The new law should not apply to capital interests in any fund to the extent the interest only provides a return commensurate with other capital contributed.

3. Carried interests held by managers of portfolio companies are not impacted. Profits interests issued by a partnership to an employee of a corporate subsidiary conducting a business that is not an applicable trade or business should not be subject to the new law.

4. Qualified dividends taxed at capital gains rates are not affected. The new law does not change the treatment of qualified dividend income allocated to the holder of a carried interest.

S. International

1. 100% deduction for 10% U.S. corporate shareholders for the foreign-sourced portion of dividends from foreign corporations. The act provides a 100% deduction for the foreign-sourced portion of dividends received by a domestic corporation that owns at least 10% of the foreign corporation paying the dividend. See IRC § 245A(c). The U.S. corporation must satisfy a one-year holding period to receive the deduction. The 100% deduction is available only to C corporations that are not regulated investment companies or REITs. The deduction does not apply to dividends from PFICs that are not also CFCs. No foreign tax credit or deduction is allowed for any taxes paid with respect to a dividend that qualifies for the 100% deduction.

            A corporate shareholder’s basis in the stock of a 10%-owned foreign corporation is reduced by the portion of any dividend that qualified for the 100% deduction, but only in determining loss on the sale or exchange of the stock. See IRC § 961(d).

When a domestic corporation sells the stock of a foreign corporation held for more than one year, any amount received by the corporation that is treated as a dividend under Section 1248 may be treated as a dividend for purposes of the 100% deduction.

(a)        Corporations remain taxable on foreign income earned directly. Although the new law is described as a transition to a territorial system, U.S. corporations remain taxable on foreign income earned directly, such as through a branch or disregarded entity, rather than through a foreign corporate subsidiary. Thus, U.S. corporations will generally conduct foreign businesses through foreign corporate subsidiaries.

(b)        Individuals and flow-through entities do not qualify for the 100% deduction or any other exclusion. An individual who engages in a foreign business directly or through a pass-through entity will remain subject to U.S. income tax on foreign earnings. If an individual establishes a foreign corporation to conduct the business, he or she will be taxable on dividends from the subsidiary and will not benefit from the 100% deduction.

2. Deemed repatriation. Under the act, U.S. shareholders, including individuals, owning at least 10% of a foreign subsidiary based on voting power generally must include in income the shareholders’ pro rata share of the foreign subsidiary’s post-1986 earnings and profits to the extent such E&P has not previously been subject to U.S. tax (determined as of November 2 or December 31, 2017, whichever is greater). For corporate shareholders, the portion of the E&P comprising cash or cash equivalents is taxed at 15.5%, and the remaining E&P is taxed at 8%. The rates may be higher for individuals. Such tax liability may be paid over a period up to 8 years. See IRC § 965.

The tax applies to a U.S. taxpayer who owns any size interest in a domestic partnership or S corporation that owns 10% or more of the stock of a foreign corporation. A special rule permits shareholders of S corporations to defer the tax until certain triggering events. Whether a target company may be liable for the repatriation tax should be an important diligence item for buyers.

3. Tax on global intangible low-taxed income. Under the new law, U.S. shareholders of CFCs (including individuals) must include in income currently their shares of the global intangible low-taxed income (“GILTI”) of the CFCs. GILTI is calculated by subtracting from the net CFC tested income an amount representing a 10% return on the CFCs tangible depreciable property (using tax basis rather than fair market value). These rules will mainly impact U.S. multinationals with significant income from IP in low-tax countries.

            Corporate U.S. shareholders are allowed a deduction equal to 50% of the GILTI and an 80% foreign tax credit with respect to their share of certain foreign taxes paid by the CFC. As a result, GILTI on which no foreign tax is paid is subject to U.S. tax at a 10.5% rate. GILTI that is subject to foreign tax at a rate of at least 13.125% is not subject to any U.S. tax. In contrast, U.S. shareholders that are not corporations are not eligible for the 50% GILTI deduction or 80% foreign tax credit. The effective tax rate on GILTI for an investor in a U.S. partnership could be as high as 37%. An individual U.S. shareholder may be able to mitigate that by making an election under Section 962 to be taxed on the GILTI at the 21% corporate tax rate.

If a business owned by a CFC has a relatively small amount of tangible property, much of the business income will be taxable to U.S. shareholders even if the CFC does not make distributions. Individual shareholders will not be entitled to certain deductions and credits, as described above. Although individual owners would be taxable on flow-through income if the business were operated by a partnership, they would receive several advantages, including (a) foreign tax credits for non-U.S. taxes paid by the business, (b) capital gain recognized by the business would flow through as capital gain, (c) losses produced by the business might offset other income of the individual, and (d) a future U.S. buyer of the business might pay a higher price due to a step-up in the basis of the business’ assets.

The new rules make it more likely a U.S. corporation disposing of foreign assets will prefer a stock rather than an asset sale. As described above, in some cases a stock sale will be a dividend equivalent transaction for which the 10% deduction may apply. In contrast, if the foreign subsidiary sells assets, the gain may increase the amount included as GILTI.

The GILTI rules may lead taxpayers to engage in transactions that increase the tax basis of depreciable property held by CFCs (such as structuring offshore acquisitions as actual or deemed asset purchases) and encourage structures that avoid the CFC rules. The GILTI rules may also result in more investment funds being organized outside the U.S.

4. Deduction for foreign-derived intangible income. Under the act, a domestic corporation is allowed a deduction equal to (a) 37.5% of the foreign-derived intangible income of the corporation plus (b) 50% of the GILTI amount that is included in gross income under Section 951(a). That is intended to reduce incentives for corporate taxpayers to move intangible assets outside the U.S. for use in foreign operations.

5. Expansion of definition of U.S. shareholder. Under the new law, U.S. shareholders for CFC purposes include any U.S. person who owns 10% or more of the total value of shares of all classes of stock of a foreign corporation. Under prior law the determination was based solely on voting power. See IRC § 951(b).

6. Base erosion anti-abuse tax. Under the act, certain corporations with average annual gross receipts of at least $500 million and with payments to foreign affiliates equal to 3% or more of total deductions are required to pay a base erosion anti-abuse tax (“BEAT”). In applying the annual gross receipts threshold, corporations that are members of the same controlled group are treated as one person. The BEAT is generally equal to the excess of (a) a specified percentage (5% for 2018, 10% before 2026, and 12.5% thereafter) of the modified taxable income of the taxpayer over (b) the regular tax liability of the taxpayer reduced by income tax credits allowed against such regular tax. In determining its modified taxable income, a corporation adds back certain base eroding payments and the base erosion percentage of any allowable NOL deduction for the year. See IRC § 59A.

7. Denial of deduction for certain related party payments. The act denies a deduction for certain payments to related parties pursuant to a hybrid transaction or to a hybrid entity where the related party is not required to include such amount in income under the tax laws of its country or is allowed a deduction with respect to such amount under the tax laws of its country. A hybrid transaction is one that involves payment of interest or royalties that are not treated as such by the country of residence of the foreign recipient. A hybrid entity is an entity treated as fiscally transparent for U.S. income tax purposes but not treated as such under the laws of the entity’s country. See IRC § 267A.

8. Elimination of thirty-day ownership requirement for Subpart F inclusions. See IRC § 951(a).

9. Expansion of attribution in determining CFC status. Stock of a foreign corporation is now attributed downward from a foreign person to a related U.S. person in determining whether that person is a U.S. shareholder. See IRC § 958.

10. Elimination of trade or business exception in Section 367(a). Under the act, when a U.S. person transfers assets used in an active foreign business to a foreign corporation, the transferee is not treated as a corporation in determining whether the transfer is taxable.

11. Loss capture on the transfer of a foreign branch to a foreign corporation. See IRC § 91.

12. Source of income from sales of inventory produced by the seller is based solely on the location of production. Under prior law, where inventory was produced in the U.S. and sold outside the U.S., income was generally sourced 50% to the U.S. and 50% to the place of sale. See IRC § 863(b)

T. Structuring Business Transactions

1. Choice of entity. Given the significantly lower corporate tax rate, taxpayers forming new businesses or currently operating businesses through partnerships or S corporations should evaluate the advantages and disadvantages of various entity choices. Income earned by a C corporation continues to be subject to two layers of tax. Not only is income earned by a partnership or an S corporation taxed only once, there is now a 20% deduction for qualified business income. Another significant advantage of partnerships and S corporations is the ability to provide the buyer of the business with a step-up in the basis of the company’s assets, which is generally not feasible where the target is a C corporation and would incur double taxation in an actual or deemed asset sale. Further, it is possible future tax laws will increase corporate tax rates.

Where all income qualifies for the 20% deduction without limit, and all income is distributed, the highest effective federal individual income tax rate is (a) 29.6% where a pass-through entity is used (37% top rate times 80%) and (b) 36.8% where a C corporation is used (21% corporate rate, plus 20% dividend rate times 79%). If no 20% deduction is available, the rates are 37% for a pass-through entity and 36.8% for a C corporation. An advantage of pass-through form in both cases is the 3.8% tax under Section 1411 does not apply to an owner of a pass-through who materially participated in the business but does apply to a dividend from a C corporation without regard to material participation. Where the business is operated by a partnership, self-employment taxes do not apply to income that flows through to a limited partner.

2. Expanded use of C corporations. Given the 21% corporate tax rate, it may be beneficial to hold certain assets and businesses in C corporations, especially where long-term capital gain and business income qualifying for the 20% deduction are not produced. Among the relevant factors are (a) C corporations can continue to deduct state income taxes, (b) corporations can continue to deduct investment expenses that are no longer deductible by individuals, (c) whether the corporation could retain earnings without being subject to the accumulated earnings tax, (d) whether the corporation would be a personal holding company, and (e) whether the stock of the corporation would likely be held until the death of its shareholders when the basis of the stock would be increased to fair market value.

            An entity that accumulates earnings may benefit from converting to a C corporation to take advantage of lower corporate tax rates, both on a current basis and on a compounding of the earnings.

            Among the risks of using a C corporation are (a) future tax laws may increase corporate tax rates, (b) the liquidation or conversion of a C corporation to an LLC classified as a partnership is a transaction that is fully taxable to both the corporation and its shareholders, and (c) although an S election may be possible if tax laws are later changed to adversely impact C corporations, in many cases the corporation may not be able to make an S election because, for example, it has a corporation or partnership as a shareholder, has a foreign shareholder, or has more than one class of stock.

Where an individual plans to sell an asset that will not produce long-term capital gain, in some cases it might be advantageous to contribute the asset to a C corporation she owns and have the corporation eventually sell the asset.

An individual worker could form a C corporation (i.e., a loan out or personal service company) and have the corporation contract to provide her services to one or more businesses. In some cases that may be tax efficient, especially if the corporation will mostly reinvest its profits. There are, of course, many tax and non-tax factors that should be taken into account.

3. C corporations may be especially advantageous where shareholders can generally exclude all gain from the disposition of qualified small business stock. Where shareholders are likely to meet the requirements for excluding 100% of gain from the sale of qualified small business stock pursuant to Section 1202, a C corporation may be advantageous.

4. Reevaluating blocker structures. Private equity sponsors should consider whether making portfolio investments through flow-through entities with upper-tier blockers, as compared to fully blocked structures, remains efficient. The tax profile of a fund’s investors (e., proportions of investors who are U.S. taxpayers, foreign investors, and U.S. tax-exempt entities), the tax attributes of the target, and the manner and timing of the expected sale are among the important considerations. Sponsors should compare the potential benefits of a single layer of taxation from flow-through structures for some investors and a potential sales price increase on exit due to a partial basis step-up against the simplicity of a fully blocked structure.

5. Advantages of Up-C structure. There are several advantages of a public company owning a majority interest in an LLC classified as a partnership. Individual investors in the subsidiary LLC can benefit from the 20% deduction, as well as the public valuation provided by the C corporation parent. The LLC may issue preferred equity to avoid the limit on interest deductibility. The LLC may avoid the limit on the deductibility of executive compensation above $1 million per year, which only applies to publicly traded corporations. This structure may be advantageous regardless of whether the C corporation parent is publicly traded.

6. Expanded use of REITs. Given REIT ordinary dividends qualify for the 20% deduction, it may be advantageous to hold real estate through REITs, especially where the real estate does not produce business income, such as rents from a triple-net lease. Also, although investment interest income does not qualify for the 20% deduction, ordinary dividends paid by a REIT holding mortgages do qualify for the 20% deduction. Further, REIT ordinary dividends are not subject to the wage/capital limit.

7. Minimizing salary and guaranteed payments to owners to increase the 20% deduction for qualified business income. Business owners do not receive the 20% deduction for salary and guaranteed payments (e., salary paid by a partnership to a partner). In some cases it may be feasible to reduce salaries and guaranteed payments to increase the qualified business income that flows through to owners and thereby increase the 20% deduction.

8. Employees becoming independent contractors to take advantage of the 20% deduction. Employees do not receive the 20% deduction as to salaries and other compensation. An independent contractor, however, may be able to claim a 20% deduction on qualified business income. Where an employee provides his or her own equipment or vehicle or has other characteristics of an independent contractor, it may be feasible for the worker to be reclassified as an independent contractor. There are many factors to consider, including whether the reclassification is reasonable, the likelihood of an IRS challenge, and whether the worker will lose important fringe benefits previously provided by the employer.

9. Dividing specified service businesses to qualify for the 20% deduction. Owners of specified service businesses, including professional firms, real estate managers, and investment managers, cannot qualify for the 20% deduction for qualified business income if their taxable income exceeds certain limits. It may be feasible to divide a specified service business so one portion produces qualified business income. For example, perhaps a law firm could have another business entity own its building, equipment, and other tangible assets and employ the firm’s administrative staff. Fees paid by the law firm to the administrative business might produce qualified business income and permit the owners to claim the 20% deduction. Also, for example, perhaps the firm’s associates could own and work for another LLC that contracts to provide their services to the law firm. If the associates receive relatively modest salaries or guaranteed payments from the entity they own, the net income that flows through to them might be qualified business income that produces a 20% deduction.

10. Increased use of preferred equity due to limit on interest deductions. Given the limit on interest deductions, more LLCs classified as partnerships for tax purposes may issue preferred equity to investors who would otherwise make a loan to the venture. An LLC’s allocating income to the investor that would otherwise be a lender reduces income allocated to the other owners. A foreign investor, however, would be disadvantaged by that change because it would be taxable on an allocation of income as ECI but would generally not be taxable on interest.\

11. Restructuring current debt due to the limit on interest deductions. Because the act does not grandfather interest paid on debt that was outstanding prior to the enactment of the new law, taxpayers may need to reduce existing debt levels to avoid interest limits. For example, in some cases it may be possible to replace debt with preferred equity.

12. Election out of the interest limit by real property businesses. Real property trades or businesses can elect out of the business interest limit if they use ADS to depreciate applicable real property. That election will probably be common.

13. Increased leasing due to limit on interest deductions. The limit on interest deductions may incentivize companies to lease assets that would otherwise be purchased with debt because rent payments are not subject to a similar limit. Similarly, companies may enter into derivative transactions that produce deductible operating expenses and avoid interest payments.

14. Immediate expensing of capital expenditures provides an additional incentive for asset purchase treatment in mergers and acquisitions. 100% cost recovery provides an additional incentive for purchasers to structure acquisitions as asset or deemed asset purchases where the target owns significant tangible personal property.

15. Immediate expensing provides an additional incentive to maximize allocations of purchase price to tangible personal property. 100% cost recovery provides an additional incentive for a purchaser in an asset or deemed asset transaction to negotiate for allocations to tangible personal property as high as reasonable. Individual sellers and pass-through entities owned by individuals, however, have an adverse interest because higher allocations to depreciated personal property will generally increase the ordinary income on which the sellers are taxable.

16. Immediate expensing may make Section 754 elections more valuable. Where an LLC classified as a partnership owns significant tangible personal property, the purchaser of an LLC interest from another member may be able to deduct immediately 100% of the cost basis attributable to the Section 743 adjustment for tangible personal property resulting from the Section 754 election. Thus, Section 754 elections may be more valuable.

17. Impact to M&A transactions of limits on NOLs. Because NOLs can no longer be carried back to previous years, losses arising in connection with an M&A transaction can no longer be carried back to offset taxable income in prior years. Also, if tax issues for the target arise in years before the one in which the NOL arises, the purchaser will not be able to use the NOL to mitigate the impact of the tax issues.

18. Multinational groups should operate offshore through foreign subsidiaries. Given U.S. corporations continue to be taxable on foreign income earned directly or through disregarded entities, U.S. corporations should generally operate offshore through foreign corporate subsidiaries and thereby generally be entitled to the 100% deduction for foreign-sourced dividends.

19. Foreign subsidiaries should continue to be excluded as guarantors of the debt of the U.S. parent. Because U.S. shareholders of a CFC are still subject to tax on the retained earnings of the CFC that are invested in U.S. property under Section 956, foreign subsidiaries should continue not to provide guarantees of the debt of U.S. members of the group. Also, the group should not pledge more than two-thirds of the stock of foreign subsidiaries.

20. Foreign subsidiary should dividend its earnings to the U.S. parent before investing in U.S. assets. Where a U.S. multinational group intends to utilize the earnings of a foreign subsidiary to invest in U.S. assets, the subsidiary should first dividend the earnings to the U.S. parent, which should generally qualify for the 100% deduction, to avoid the parent’s being taxable as a result of a Subpart F inclusion under Section 956.

Herman Spence III is an attorney with Robinson Bradshaw in Charlotte.