For the third installment of our series, we will discuss excess business losses and net operating losses for individual taxpayers.
Previously, individuals offset business losses against all other income (subject to passive and basis limitations). Beginning after 2017, and applying to all taxpayers other than C corporations, there is a new concept of “excess business loss.” A taxpayer may now generate disallowed excess business losses, which will be treated as a net operating loss carryover subject to the new 80% limitation.
“Excess business loss” is defined as the excess of allowable deductions attributable to taxpayers’ trades or businesses over the sum of total taxable gross income attributable to the trades or businesses plus $500,000 for a joint return ($250,000 for all others). This is calculated after the passive activity rules limitations.
Essentially, this limits the ability to offset other income by trade or business losses; effectively, married taxpayers can only offset up to $500,000 of non-business income (e.g., investment income, wages, et cetera) with business losses.
Example for a single taxpayer:
| 2017 | 2018 | |
|---|---|---|
| Wages | $100 | $100 |
| Investment income | $200 | $200 |
| Eligible business losses | $(500) | $(500) |
| Taxable income/(loss) | $(200) | $50 |
| Net operating loss | $(200) | $(250) |
**Excess business loss converts to net operating loss (NOL)
This could have a significant impact on the real estate industry, particularly when considering the increased ability to expense capital assets, since the industry is depreciation-intensive.
The ability to deduct net operating losses (NOLs) will also change after December 31, 2017. For tax years beginning after that date, any NOL deduction generated will be limited to 80% of taxable income. Previously, NOLs could offset 100% of taxable income. NOLs that are being carried forward from a previous year will be allowed to offset up to 100% of taxable income, as the old law will still be applicable. Alternative minimum tax NOLs are still limited to 90% of taxable income, so there was no change in that deduction. While the deduction itself has been limited, the carryover of post-2017 NOLs is now indefinite; however, you cannot carryback NOLs after December 31, 2017. The pre-Tax Cuts and Jobs Act NOLs are limited to a 20-year carryover, and could be carried back two years.
The changes in the ability to deduct business losses and net operating losses could significantly impact planning, as it is possible that taxpayers who have been able to offset income with losses fully in the past will no longer be able to fully eliminate taxable income. Careful consideration of the cost recovery and capitalization of assets, as well as the new interest expense limitation rules, will be vital in tax planning for use of business losses and net operating losses. We will discuss the limitations on business interest expense in our next installment.
