Previously, we discussed changes to and expansion of existing tax law. In this installment, we will be addressing tax law that is entirely new. As such, there are still areas that will require further clarification from the IRS. We will discuss the law as passed on December 22, 2017 and our interpretation of the newly created Section 199A deduction, otherwise known as the “qualified business income deduction” or “20% business deduction.” The calculations as outlined in the Tax Cuts and Jobs Act are quite elaborate and involve a number of new definitions.
One of the most important new terms is “qualified business income” (QBI), which is defined as the income, gain, loss, or deduction from a qualified trade or business (defined below), in the U.S., and excludes investment income (short-term and long-term capital gains, dividends and interest, and a variety of other items).
Another new term is “qualified trade or business” (QTB). To be eligible for the QBI deduction, the income must be generated by a qualified trade or business. This is any trade or business other than “specified service trades or businesses,” which include the performance of services in the fields of health, law, accounting, actuarial science, performing arts, consulting, athletics, financials services, brokerage services, any services related to investment management, and any trade or business where the principal asset is the skills and reputation of the employees or owners.
One important item to note: Even specified service trades or business are eligible for the deduction if the taxpayer’s income does not exceed certain thresholds. There is a phase-out for the specified service trades, so once taxable income exceeds $415,000 for joint returns, income generated from the specified service trades will not be considered QTB and therefore will not be considered for the QBI deduction.
There are two limitations on the deduction at the QTB level: the W-2 wage limitation and the W-2 wage and qualified property limitation. These limitations only apply if taxable income exceeds $315,000 for a joint return, or $157,500 for all other returns. If your income is less than this threshold, then none of the limitations apply, so the deduction calculation becomes less complicated.
The QBI deduction must be calculated separately for each QTB, then combined at the taxpayer level. Each QTB will calculate their QBI deduction as:
- The lesser of 20% of the QTB’s qualifying business income, or
- The greater of either
- 50% of W-2 wages of the QTB, or
- the sum of 25% of the W-2 wages plus 2.5% of the unadjusted basis of qualified property.
The unadjusted basis limitation will likely be of significant importance to the real estate industry. There will be additional tracking needed for assets placed in service, as there are limitations on the life for this deduction (which may differ from MACRS depreciation lives).
Once qualified business income is calculated at each QTB, it is then combined into one amount, the “qualified business income amount” (QBIA). The final QBI deduction is calculated as the lesser of the combined deduction for all QTBs or 20% of taxable income in excess of net capital gain.
If the net QBI is a loss, then it is carried forward to the next tax year to offset QBI. There is little guidance on how the carryover loss is applied to the separate QTBs, or the interaction with the other limitations.
This new 20% deduction from QBI is effective for taxable years beginning after December 31, 2017 through December 31, 2025. It applies to taxpayers other than C corporations, including trusts and estates, and is calculated at the owner level.
It does not reduce self-employment income, and is not modified for alternative minimum tax purposes. It also cannot increase a net operating loss.
One of the biggest unknowns at this time is how this QBI deduction will interact with the passive activity loss rules. This interplay will likely have significant impact to many involved in real estate. Another aspect, which has not been clarified at this point, is the impact of the aggregation rules for real estate, since the QBI deduction must be calculated for each separate trade or business.
While the word “simplification” was continuously mentioned during the negotiations and creation of the Tax Cuts and Jobs Act, it was definitely not considered with this new Internal Revenue Code section.
