Overview of the Tax Cuts and Jobs Act

On December 22, 2017, President Trump signed a new tax bill into law, informally referred to as the Tax Cuts and Jobs Act (Tax Act). As the biggest legislative tax overhaul in 30 years, the Tax Act will significantly impact both individuals and corporations. The Tax Act modifies the individual tax brackets and marginal rates, limits many individual deductions that were previously permitted (such as that for state and local taxes) and significantly changes the tax treatment of certain business income earned by individuals through a "pass-through" entity. The Tax Act also reduces the corporate income tax rate and materially changes the taxation of non-US earnings of multinational groups and investors. Although most of the individual income tax changes are scheduled to expire in eight years, the corporate income tax changes generally are permanent.

Individual Income Tax Provisions

Individual Tax Rates

The Tax Act maintains seven individual income tax brackets, but, for taxable years beginning on or after January 1, 2018, the top individual income tax rate is reduced to 37 percent (from 39.6 percent) for single filers with taxable income in excess of $500,000 (in excess of $600,000 for joint filers). Under the Tax Act, the income tax rates applicable to individuals are 10 percent, 12 percent, 22 percent, 24 percent, 32 percent, 35 percent and 37 percent.

The Tax Act does not make changes to the 20 percent tax rate for long-term capital gains and qualified dividend income, the 3.8 percent Medicare tax on certain levels of net investment income or the 0.9 percent additional Medicare tax.

Standard Deduction

The Tax Act doubles the standard deduction (to $12,000 for single filers and $24,000 for joint filers).

State and Local Tax Deductions

Under the Tax Act, as a general matter, an individual may only deduct state, local and non-US property taxes, and state and local sales taxes, when such taxes are paid or accrued in carrying on a trade or business. Moreover, under the Tax Act, an individual generally is disallowed a deduction for state and local income taxes. As an exception to the general rule, an individual may deduct up to $10,000 of state and local income and/or property taxes per year. Non-US real property taxes may not be deducted under this exception.

Mortgage Interest Deduction

The Tax Act provides that no more than $750,000 ($375,000 in the case of married taxpayers filing separately) may be treated as acquisition indebtedness for purposes of the mortgage interest deduction. For acquisition indebtedness incurred before December 15, 2017 (or refinancing of such debt in an amount not in excess of the prior debt), this limitation is $1,000,000 ($500,000 in the case of married taxpayers filing separately). The Tax Act suspends the interest deduction on home equity indebtedness.

20 Percent Deduction for Certain Business Income and REIT Dividends

The Tax Act provides new rules permitting certain individuals, trusts and estates to deduct up to 20 percent of their domestic "qualified business income" and 20 percent of their aggregate "qualified REIT dividends."

Business Income Deduction

Under the Tax Act, an individual, trust or estate is permitted to deduct, for a taxable year, 20 percent of the taxpayer's share of domestic "qualified business income" with respect to a "qualified trade or business" from a partnership (or other entity treated as a partnership), S corporation, or sole proprietorship (subject to two important limitations discussed below) (Business Income Deduction). This deduction generally results in an effective tax rate of 29.6 percent (assuming the new maximum individual income tax rate of 37 percent applies) on such income. In the case of a partnership or S corporation, the deduction amount is calculated at the partner or shareholder level.

"Qualified business income" generally means income, gain, deductions and loss with respect to any qualified trade or business (generally defined as any trade or business other than the trade or business of performing services as an employee) that are effectively connected with the conduct of a US trade or business. However, the Tax Act specifically excludes from qualified business income numerous items, including investment income (e.g., capital gains and losses, dividends, certain interest income), certain annuity payments, and guaranteed payments or reasonable compensation paid for services rendered.

The Business Income Deduction is subject to two important limitations for taxpayers generally with taxable income (i.e., income from all sources) in excess of a threshold of $157,500 for single filers and $315,000 for joint filers (indexed for inflation). (Taxpayers with taxable income below these threshold amounts generally are not subject to these limitations.) These limitations generally are phased in for taxpayers with taxable income above these threshold amounts.

First, the Business Income Deduction generally is limited to the greater of:

1. 50 percent of the taxpayer's share of the W-2 wages paid by the qualified trade or business, or
2. 25 percent of the taxpayer's share of the W-2 wages paid by the qualified trade or business, plus 2.5 percent of the taxpayer's share of the unadjusted basis (immediately after acquisition) of all tangible depreciable assets used in the trade or business.

Second, taxpayers in specified service trades or businesses (e.g., law, accounting, consulting, financial services, investment management) are, unless their taxable income is not in excess of the above-noted threshold amounts, precluded altogether from claiming the Business Income Deduction on income derived from such trade or business.

REIT Dividend Deduction

Under the Tax Act, an individual, trust or estate is permitted to deduct, for a taxable year, 20 percent of the taxpayer's aggregate "qualified REIT dividends" (defined as any REIT dividend other than a REIT capital gain dividend or a dividend attributable to the REIT's receipt of a "qualified dividend" otherwise taxable at preferential long term capital gain rates) and "qualified publicly traded partnership income" (generally including domestic business income allocated from a PTP not taxed as a corporation, but excluding investment-related items from PTPs) (REIT Dividend Deduction).

The two limitations to the Business Income Deduction do not apply to the REIT Dividend Deduction. Thus, individuals, trusts and estates who derive income that is not qualified business income or that is subject to the W-2 and basis limitations may, where possible, seek to transfer appropriate REIT-eligible assets to a private REIT. By doing so, such taxpayers may be able to claim the REIT Dividend Deduction.

Charitable Contributions

The Tax Act (1) increases the percentage limit for charitable contributions of cash to public charities from 50 percent to 60 percent of an individual's adjusted gross income; (2) permanently denies a charitable deduction for payments made in exchange for college athletic event seating rights; and (3) permanently repeals the exception to the contemporaneous written acknowledgment requirement for contributions of $250 or more when the donor organization files the required return.

Other Individual Deductions and Exclusions

The Tax Act also makes a number of other important changes to the taxation of individuals, including the following:

1. Suspends the overall limitation on itemized deductions (the so-called "Pease limitation").
2. Suspends all miscellaneous itemized deductions (including the deduction for tax preparation expenses).
3. Generally suspends the deduction for moving expenses and generally suspends the exclusion from gross income for qualified moving expense reimbursements.
4. Limits the personal casualty loss deduction to losses incurred as a result of a federally-declared disaster.
5. Reduces the threshold for deducting medical expenses to 7.5 percent of adjusted gross income for all taxpayers for taxable years beginning after December 31, 2016 and ending before January 1, 2019.
6. Permanently modifies section 529 plans to allow such plans to fund up to $10,000 in annual expenses for elementary or secondary school tuition.
7. Permanently repeals both the deductibility of alimony payments and the inclusion of alimony payments in the payee's gross income (effective for divorce decrees and separation agreements, and certain modifications thereof, entered into after 2018).

Individual Alternative Minimum Tax

The alternative minimum tax (AMT) for individuals is retained, except that the Tax Act provides higher exemption amounts of $70,300 for single taxpayers and $109,400 for joint filers. The phase-out thresholds are increased to $500,000 and $1 million for single and joint filers, respectively.

Effective Date and Expiration

Unless otherwise specifically indicated, the individual income tax changes made by the Tax Act, discussed above, are effective for taxable years beginning on or after January 1, 2018, and are scheduled to expire for taxable years beginning on or after January 1, 2026.

Estate, Gift and Generation-Skipping Transfer Taxes

The Tax Act doubles the tax exemption amounts applicable to the estate, gift and generation-skipping transfer taxes for the next eight years. From 2018 through 2025, the estate and gift tax unified exemption will be $10 million (instead of the current $5 million), adjusted for inflation retroactively from a base year of 2010. Accordingly, in 2018, the estate and gift tax unified exemption will be $11.2 million per individual. Because the estate and gift tax credit remains unified, any gifts made during a person's lifetime pursuant to this exemption will reduce, correspondingly, the amount of the tax exemption available at the time of such person's death. The Tax Act also doubles the exemption amount for generation-skipping transfers made in 2018 through 2025 to $10 million (from the current $5 million), adjusted for inflation retroactively from a base year of 2010. The Tax Act does not repeal the estate, gift or generation-skipping transfer taxes at any point.

Business Tax Provisions

Corporate Tax Rate

The Tax Act replaces the graduated corporate tax rates under the prior law, which imposed a maximum tax rate on corporations of 35 percent, with a reduced 21 percent flat rate.

Dividends-Received Deduction

Under prior law, corporations that received dividends from other corporations generally were allowed a dividends-received deduction (DRD) equal to 80% of the dividends received if the receiving corporation owned at least 20% of the distributing corporation, and a 70 percent deduction in all other cases. In light of the reduced corporate tax rates, to maintain similar effective tax rates on dividends paid between corporations, the Tax Act reduces the 80 percent DRD for dividends received from a 20 percent-owned corporation to 65 percent, and reduces the 70 percent DRD for dividends received from all other corporations to 50 percent.

Corporate Alternative Minimum Tax

Under prior law, the corporate AMT subjected US corporations to tax on an alternative taxable income (calculated with limitations on certain tax benefits allowed under the regular formula), at a tax rate of 20 percent, if this yielded a higher tax than the normal rates applied to the taxable income as generally computed. The Tax Act repeals the corporate AMT.

Net Operating Losses

Under prior law, net operating losses (NOLs) could be carried back two years and carried forward 20 years. The Tax Act eliminates, with limited exceptions, the ability to carry back NOLs but allows NOLs to be carried forward indefinitely. However, the annual deduction for NOL carryforwards is now limited to 80 percent of taxable income.

Limitation on Interest Expense Deduction

The Tax Act contains a new limitation on the deduction of interest incurred in connection with a trade or business. This provision replaces prior law, which only limited business interest paid by US corporations to related non-US corporations where such interest was not subject to full 30 percent withholding tax. The new interest expense limitation established by the Tax Act is broader and applies to interest expense of corporate and non-corporate taxpayers paid both to related and unrelated parties. This new rule generally limits the annual deduction of business interest expense to the sum of (1) business interest income and (2) 30 percent of "adjusted taxable income," defined as similar to "Earnings Before Interest Taxes Depreciation and Amortization" for 2018 through 2021, and "Earnings Before Interest and Taxes" thereafter. Interest disallowed in a year as a result of this limitation can be carried forward indefinitely.

This limitation does not apply to certain regulated public utilities and electing real property trades or businesses. Electing real property trades or businesses will, however, be required to use the alternative depreciation system to depreciate non-residential real property, residential rental property, and qualified improvement property. As a result, such electing trades or businesses are not eligible for bonus depreciation with respect to qualified improvement property (discussed below). As an additional exception, businesses with average gross receipts of $25 million or less for the preceding three-year period will not be subject to this limitation. Special rules apply for determining the limitation on interest expense of partnerships and S corporations.

Business Asset Expensing

The Tax Act expands the prior-law "bonus" depreciation by allowing taxpayers immediately to expense the entire cost (instead of only 50 percent, as under prior law) of certain depreciable tangible property and real property improvements acquired and placed in service after September 27, 2017 and before January 1, 2023 (with an additional year for property with longer recovery periods). This 100 percent bonus depreciation is phased down proportionately for qualifying property placed in service on or after January 1, 2023 and before January 1, 2027 (with an additional year for property with longer recovery periods). The Tax Act also expands the definition of property eligible for this bonus depreciation to include the first use by the taxpayer of property previously used by another party. This immediate expensing is not available for certain regulated public utilities and businesses using floor plan financing (i.e., car dealerships).

Like-Kind Exchanges Limited to Real Property

In general, certain assets with built-in gain can be exchanged for a similar replacement asset without recognizing the built-in gain for US federal income tax purposes in the exchanged asset (referred to as a "like-kind exchange"). In a qualifying like-kind exchange, the built-in gain in the exchanged asset is deferred and "carries over" to the replacement asset. Under prior law, this tax deferral was available for both personal and real property held for productive use in a trade or business, or held for investment purposes, and exchanged for property of a like-kind that also was held for productive use in a trade or business or for investment. The Tax Act restricts the tax deferral of a like-kind exchange solely to real property.

Three-Year Holding Period Requirement For Certain Partnership Interests

Individuals that provide financial and investment management services to investment funds often receive a partnership "profits interest" (or carried interest) in the fund as a part of their compensation. Although compensation generally is taxed at individual ordinary income tax rates (maximum 39.6 percent under prior law), allocation of fund profits with respect to such profits interests that relate to underlying long-term capital gain of the fund were, under prior law, taxable at preferential long-term capital gain rates (maximum 20 percent). Longterm capital gain rates generally apply to gain on the sale of a capital asset held for at least one year.

The Tax Act establishes an extended three-year holding period requirement in order for individuals to benefit from the long-term capital gain rates on gain recognized with respect to certain partnership profits interests (applicable partnership interest) that are received in exchange for substantial services provided in connection with an "applicable trade or business." An "applicable trade or business" generally is defined to mean (1) raising and returning capital and (2) either investment or development activities with respect to "specified assets." "Specified assets" are defined to include (1) securities, commodities, real estate held for rental or investment and cash or cash equivalents and (2) options or derivative contracts with respect to, and interests in partnerships relating to, any of these assets. This provision generally will apply to carried interests issued to fund and investment managers, but should not apply to partnership interests in partnerships engaged in operating businesses.

In the case of an applicable partnership interest, this new rule appears to impose a three-year holding period requirement both on (1) the assets of the partnership in the case of the allocation of partnership gain with respect to such assets and (2) the partnership interest in the case of gain on the sale of a relevant partnership interest by the partner. Treasury regulations or other guidance from the U.S. Internal Revenue Service (IRS) are necessary to confirm this.

Other Business Tax Provisions

The Tax Act makes other notable changes to the taxation of businesses, including, among other things, the following:

1. Expands taxpayers eligible to use the cash method of accounting to include taxpayers with average annual gross receipts of $25 million or less during a preceding three-year period and beneficial treatment for such taxpayers in accounting for inventory and long-term contracts.
2. Requires taxpayers to recognize an item of income no later than the taxable year in which such item is taken into account on financial statements.
3. Requires research expenses to be capitalized and amortized ratably over a five-year period.
4. Repeals the tax-free treatment for any contribution in aid of construction or any other contribution in aid of construction or any other contribution as a customer or potential customer, and any contribution by any governmental entity.
5. Repeals the technical termination rules for partnerships.
6. Repeals the domestic production activity deduction.
7. Repeals the deduction for lobbying expenses with respect to legislation before local government bodies.
8. Disallows deductions for business-related entertainment activities, employee transportation fringe benefits and, beginning in 2026, the cost of certain meals provided to employees for the convenience of the employer.
9. Modifies a number of business credits provided under prior law.

International Tax Provisions

In general, US corporate and non-corporate taxpayers are subject to U S federal income tax on their worldwide income, regardless of source (i.e., a "worldwide tax regime"). Under prior law, this worldwide taxation included the taxation of dividends received by US corporations from non-US subsidiaries. Additionally, anti-tax deferral rules imposed current US federal income tax on certain types of passive and related-party income (Subpart F income) of certain non-US corporations (controlled foreign corporations or CFCs), even if the earnings of these corporations was not actually distributed to shareholders that are US persons. Generally, a CFC was defined as a non-US corporation that is greater than 50 percent owned (by vote or value) in the aggregate by "US shareholders." A "US shareholder" was defined as a US person that owned at least 10 percent of the vote of the non-US corporation at issue.

Modification of CFC Rules

The CFC rules described above remain largely intact but have been expanded in certain key areas by the Tax Act. Significantly, the definition of a "US shareholder" is expanded by the Tax Act to include US persons that own at least 10 percent of the vote or value of the non-US corporation at issue (i.e., not only vote, as under prior law). Additionally, effective for the last taxable year of non-US corporations beginning before January 1, 2018, the Tax Act expands the constructive ownership rules for purposes of determining whether a US person is a US shareholder of a non-US corporation and whether a non-US corporation is a CFC. These changes will result in more US persons being treated as US shareholders and more non-US corporations being treated as CFCs. The Tax Act makes a number of other changes to the CFC rules, including, among other things, the repeal of the requirement that a non-US corporation be a CFC for an uninterrupted period of 30 days or more during any taxable year for the consequences of the CFC rules to apply.

DRD for Dividends From Non-US Subsidiaries

In a move towards a "territorial" approach, the Tax Act established a 100 percent DRD for the non-US source portion of dividends distributed by a non-US corporation (except a so-called "passive foreign investment company" (PFIC) that is not also a CFC) to a US corporate shareholder owning at least 10 percent (of vote or value) of the distributing corporation. A one-year holding period of the non-US corporate stock is required to be eligible for this DRD. No foreign tax credit or deduction is allowed for any taxes paid or accrued with respect to a dividend that qualifies for this DRD. Additionally, US corporations will no longer receive indirect foreign tax credits along with dividends from a non-US subsidiary. A DRD is not available with respect to dividends paid by a CFC that received a deduction for the distribution (i.e., a "hybrid dividend"). Significantly, however, non-US income earned directly by a US corporation still is subject to full US federal income taxation.

Mandatory One-Time Deemed Repatriation

To transition to the DRD regime, the Tax Act establishes a mandatory one-time deemed repatriation of certain accumulated earnings of non-US subsidiaries to certain US shareholders. Specifically, for a non-US corporation's last tax year beginning before January 1, 2018, a US shareholder (whether corporate or not) owning at least 10 percent (of the vote) of a "deferred foreign income corporation" generally must include in income, as Subpart F income, the shareholder's pro-rata share of the untaxed accumulated post-1986 earnings and profits (E&P) of the non-US corporation. A "deferred foreign income corporation" generally is defined as (1) either (a) a CFC or (b) a non-US corporation with at least one US-corporate shareholder owning 10 percent (of the vote) of such corporation and (2) that has untaxed post-1986 E&P. The specific amount of earnings of a deferred foreign income corporation to be included is determined based on the greater amount as of November 2, 2017 or December 31, 2017. The shareholder's portion of earnings of the non-US corporation held in cash and cash equivalents is taxed at a 15.5 percent rate and the shareholder's portion of all other earnings is taxed at an 8 percent rate. A taxpayer may elect to pay the tax due under this provision in installments over an eight-year period. Additional rules for deferral of this tax liability apply for S corporations.

In the case of real estate investment trusts (REITs), this one-time inclusion of untaxed earnings is excluded for purposes of the REIT gross income test. In addition, REITs are permitted to elect to meet the annual distribution requirement to REIT shareholders with respect to this inclusion of earnings over an eight-year period.

Global Intangible Low-Taxed Income

The Tax Act creates a new category of income, so-called "global intangible low-taxed income" (GILTI), that will be currently includable pro rata in the income of the US shareholders of a CFC, similar to Subpart F income. This provision is viewed as an expansion of the CFC rules of the prior law because it subjects a portion of the active income generated by a CFC (and not just passive and related-party income) to current US federal income tax.

Generally, GILTI is equal to the amount that a U.S. shareholder's "net CFC tested income" exceeds the shareholder's "net deemed tangible income return." A shareholder's "net CFC tested income" generally is the shareholder's pro-rata share of the net income of a CFC, excluding Subpart F income, income that would otherwise be Subpart F income but for the application of the so-called "high tax kick-out" exception and income subject to US federal income tax. A shareholder's "net deemed tangible income return" generally is an amount equal to the excess of 10 percent of the shareholder's pro-rata share of the "qualified business asset investment" of the CFC (generally the CFC's adjusted basis of the depreciable property generating the CFC tested income) over the net interest expense taken into account in determining the shareholder's net CFC tested income. A US corporation, but not an individual, will benefit from a 50 percent deduction (reduced to 37.5 percent beginning in 2026) of GILTI included in income, resulting in a 10.5 percent effective tax rate on GILTI (13.125 percent beginning in 2026). The US federal income tax imposed on GILTI of a US corporation, but not an individual, will be further mitigated through the allowance of an indirect foreign tax credit in the amount of 80 percent of the foreign tax credits paid by the CFC with respect to the GILTI included by the US corporation. Individual shareholders, by contrast, pay full tax on GILTI and receive no foreign tax credits.

In a related provision, the Tax Act creates a new rule that imposes a reduced effective tax rate on so-called "foreign derived intangible income" generated by a US corporation, generally income generated from sales to, and services provided to, non-US persons outside of the United States.

Base Erosion Minimum Tax

Under the Tax Act, corporations (other than REITs, regulated investment companies, or RICs, and S corporations) meeting certain threshold requirements are required to pay a tax equal to the "base erosion minimum tax amount" for the tax year. The "base erosion minimum tax amount" generally is equal to the excess of 10 percent (5 percent in 2018 and 12.5 percent beginning in 2026) of the taxpayer's modified taxable income, which is determined with "base erosion payments" added back, over the corporation's regular income tax liability (reduced by certain tax credits). A "base erosion payment" generally is an amount that is paid to a related non-US party that is deductible to the taxpayer, but does not include payments included in the cost of goods sold. Deductible payments that would otherwise be treated as "base erosion payments" but are subject to US withholding tax at a rate of 30 percent will not be added back in determining modified taxable income. The base erosion minimum tax only applies to a corporation that has average annual gross receipts of at least $500 million for the preceding three-year period and generally at least three percent of the corporation's deductible payments in the year are made to related parties.

Non-US Investors Subject to Tax On Sale of Partnership Interests

In a recent case, Grecian Magnesite Mining, Industrial & Shipping Co., SA v. Commissioner, the Tax Court declined to follow the longstanding position of the IRS in Revenue Ruling 91-32 that a non-US partner is subject to U.S. federal income tax on gain from the sale of a partnership interest to the extent the partnership was engaged in a US trade or business. This case is currently being appealed by the IRS. The Tax Act includes a rule, effective for transfers of partnership interests on or after November 27, 2017, that essentially overrides the Tax Court decision and codifies Revenue Ruling 91-32. Under this new rule, gain or loss from the sale or exchange of a partnership interest will be treated as effectively connected with a US trade or business to the extent that the transferor would have had effectively connected gain or loss had the partnership sold all of its assets at fair market value as of the date of the sale or exchange. A 10 percent withholding tax is imposed, effective for transfers of partnership interests after December 31, 2017, on the gross purchase price upon a sale of a relevant partnership interest by a non-US person. This withholding requirement has been suspended, pending further IRS guidance, with respect to certain publicly traded partnership interests. Additionally, the Tax Act grants authority to the Treasury to issue regulations establishing the extent to which non-recognition provisions will apply in the case of transfers of relevant partnership interests.

Other International Tax Provisions

The Tax Act makes other notable changes to the taxation of international transactions, including, among other things, the following:

1. Creates a new rule that denies deductions for payments of interest or royalties to non-US related parties where either such item of income or the recipient entity is characterized differently for US and non-US tax purposes and such item of income is not subject to non-US tax in the hands of the recipient. This rule will significantly limit the benefits of many cross-border "repo" transactions.
2. Amends the definition of "intangible property" relevant for outbound restructurings and transfer pricing purposes to include workforce in place, goodwill, going concern value and any other item of intangible value.
3. Eliminates the exception for transfers of certain property by a US person to a non-US corporation for use in the active conduct of a non-US trade or business.

The Tax Act was assembled very quickly, and there is little in the way of legislative history available to be used in interpreting certain provisions. The IRS has already issued notices intended to clarify the operation of certain aspects of the Act (such as the mandatory one-time transition tax on US shareholders with respect to their share of accumulated earnings of non-US subsidiaries). Further guidance, including regulations, as well as technical corrections legislation, should be forthcoming. We will, of course, keep our clients apprised of relevant developments as they emerge.