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Estate, Business and Income Tax Planning in the Post-TCJA Era; What it Means for Your Farming and Ranching Business

Estate, Business and Income Tax Planning in the Post-TCJA Era; What it Means for Your Farming and Ranching Business

Estate, Business and Income Tax Planning in the Post-TCJA Era; What it Means for Your Farming and Ranching Business

Roger A. McEowen

Kansas Farm Bureau Professor of Agricultural Law and Taxation

Washburn University School of Law

roger.mceowen@washburnlaw.edu

www.washburnlaw.edu/waltr

@WashburnWaltr

Wednesday, January 17, 2018

The Tax Cuts and Jobs Act – How Does It Impact Estate Planning?

By  Roger A. McEowen

Overview

Much of the focus on the new tax law (TCJA) has been on its impact on the rate changes for individuals along with the increase in the standard deduction, and the lower tax rate for C corporations.  Also receiving a great deal of attention has been the qualified business income (QBI) deduction of new I.R.C. §199A. 

But, what about the impact of the changes set forth in the TCJA on estate planning?  That’s the focus of today’s post.

Estate Planning Implications

Existing planning concepts reinforced.  The TCJA reinforces what the last major tax act (the American Taxpayer Relief Act (ATRA) of 2012) put in motion – an emphasis on income tax basis planning, and the elimination of any concern about the federal estate tax for the vast majority of estates.  Indeed, the Joint Committee on Taxation (JCT) estimates that in 2018 the federal estate tax will impact only 1,800 estates.  Given an approximate 2.6 million deaths in the U.S. every year, the federal estate tax will now impact about one in every 1,400 estates.  Because of this minimal impact, estate planning will rarely involve estate tax planning, but it will involve income tax basis planning.  In other words, the basic idea is to ensure that property is included in a decedent’s estate at death for tax purposes so that a “stepped-up” basis at death is achieved (via I.R.C. §1014). 

Increase in the exemption.  Why did the JCT estimate that so few estates will be impacted by the federal estate tax in 2018?  It’s because the TCJA substantially increases the value of assets that can be included in a decedent’s estate without any federal estate tax applying – doubling the exempt amount from what it would have been in 2018 without the change in the law ($5.6 million) to $11.2 million per decedent.  That amount can be transferred tax-free during life via gift or at death through an estate.  In addition, for gifts, the present interest annual exclusion is set at $15,000 per donee.  That means that a person can make cumulative gifts of up to $15,000 per donee in 2018 without any gift tax consequences (and no gift tax return filing requirement) and without using up any of the $11.2 million applicable exclusion that offsets taxable gifts – it will be fully retained to offset taxable estate value at death.  In addition, the $15,000 amount can be doubled by spouses via a special election.  But, if the $15,000 (or $30,000) amount is exceeded, Form 709 must be filed by April 15 of the year following the year of the gift.

Marital deduction and portability.  For large estates that exceed the applicable exclusion amount of $11.2 million, the tax rate is 40 percent. The TCJA didn’t change the estate tax rate.  Another aspect of estate tax/planning that didn’t change involves the marital deduction.  For spouses that are U.S. citizens, the TCJA retains the unlimited deduction from federal estate and gift tax that delays the imposition of estate tax on assets one spouse inherits from a prior deceased spouse until the death of the surviving spouse.  Thus, assets can be gifted to a spouse with no tax complications at the death of the first spouse, and the first spouse can simply leave everything to a surviving spouse without any tax effect until the surviving spouse dies.  This, of course, may not be a very good overall estate plan depending on the value of the assets transferred to the surviving spouse. 

The “portability” concept of prior law was retained.  That means that a surviving spouse can carry over any unused exemption of the surviving spouse’s “last deceased spouse” (a phrase that has meaning if the surviving spouse remarries).  Portability allows married couples to transfer up to $22.4 million without any federal transfer tax consequences, and without any need to have complicated estate planning documents drafted to achieve the no-tax result.  But, portability is not “automatic.”  The estate executor must “elect” portability by filing a federal estate tax return (Form 706) within nine months of death (unless a six-month extension is granted).  That requirement applies even if the estate is beneath the applicable exclusion amount such that no tax is due. 

Remember the “Alamo” – state transfer taxes.  A minority of states (presently 17 of them) tax transfers at death, either via an estate tax or an inheritance tax.  The number of states that do is dwindling -  two more states repealed their estate tax as of the beginning of 2018.  A key point to remember is that in the states where an estate tax is retained, the exemption is often much less than the federal exemption.  Only three states that retain an estate tax tie the state exemption to the federal amount.  This all means that for persons in these states, taxes at death are a real possibility.  This point must be remembered by persons in these states – CT, HI, IL, IA, KY, ME, MD, MA, MN, NE, NJ, NY, OR, PA, RI, VT, WA and the District of Columbia.

Generation-skipping transfer tax.  The TCJA does retain the generation-skipping transfer (GSTT) tax.  Thus, for assets transferred to certain individuals more than a generation younger than the decedent (that’s an oversimplification of the rule), the “generation-skipping” transfer tax (GSTT) applies.  The GSTT is an addition to the federal estate or gift tax, but it does come with an exemption of $11.2 million (for 2018) for GSTT transfers made either during life (via gift) or at death.  Above that exemption, a 40 percent tax rate applies.  Portability does not apply to the GSTT.   

Income tax basis.  As noted above, the TCJA retains the rule that for income tax purposes, the cost basis of inherited assets gets adjusted to the fair market value on the date of the owner’s death.  This is commonly referred to as “stepped-up” basis, but that may not always be the case.  Sometimes, basis can go down.  When “stepped-up” basis applies, the rule works to significantly limit (or eliminate) capital gains tax upon subsequent sale of the asset by the heir(s).   This can be a very important rule for ag estates where the heirs desire to sell the inherited assets.  Ag estates are commonly comprised of low-basis assets.  So, while the federal estate tax won’t impact very many ag estates, the basis issue is important to just about all of them.  That’s why, as mentioned above, the basic estate plan for most estates is to cause inclusion of the property in the estate at death.  Achieving that basis increase is essential. 

Conclusion

Estate planning still remains important.  While the federal estate tax is not a concern for most people, there are still other aspects of estate planning that must be addressed.  This includes having a basic will prepared and a financial power of attorney as well as a health care power of attorney.  In certain situations, it may also include a pre-marital/post-marital agreement.  If a family business is involved, then succession planning must be incorporated into the overall estate plan.  That could mean, in many situations, a well-drafted buy-sell agreement.  In addition, a major concern for some people involves planning for long-term health care. 

Also, it’s a good idea to always revisit your estate plan whenever there is a change in the law to make sure that the drafting language used in key documents (e.g., a will or a trust) doesn’t result in any unintended consequences. 

Oh…remember that the changes in the federal estate tax contained in the TCJA mentioned above are only temporary.  If nothing changes as we go forward, the law reverts to what the law was in 2017 starting in 2026.  That means the exemption goes back down to the 2017 level, adjusted for inflation.  That also means estate planning is still on the table.  The federal estate tax hasn’t been killed, just temporarily buried a bit deeper.   

Monday, February 26, 2018

Form a C Corporation – The New Vogue in Business Structure?

By  Roger A. McEowen

Overview

The “Tax Cuts and Jobs Act” (TCJA) enacted in late 2017, cuts the corporate tax rate to 21 percent.  That’s 16 percentage points lower than the highest individual tax rate of 37 percent.  On the surface, that would seem to be a rather significant incentive to form a C corporation for conducting a business rather than some form of pass-through entity where the business income flows through to the owners and is taxed at the individual income tax rates.  In addition, a corporation can deduct state income taxes without the limitations that apply to owners of pass-through entities or sole proprietors. 

Are these two features enough to clearly say that a C corporation is the entity of choice under the TCJA?  That’s the focus of today’s post – is forming a C corporation the way to go?

Tax Comparisons

The fact that corporations are now subject to a corporate tax at a flat rate of 21 percent is not the end of the story.  There are other factors.  For instance, the TCJA continues the multiple tax bracket system for individual income taxation, and also creates a new 20 percent deduction for pass-through income (the qualified business income (QBI) deduction).  In addition, the TCJA doesn’t change or otherwise eliminate the taxation on income distributed (or funds withdrawn) from a C corporation – the double-tax effect of C-corporate distributions.  These factors mute somewhat the apparent advantage of the lower corporate rate. 

Under the new individual income tax rate structure, the top bracket is reached at $600,000 for a taxpayer filing as married filing joint (MFJ).  For those filing as single taxpayers or as head-of household, the top bracket is reached at $500,000.  Of course, not every business structured as a sole-proprietorship or a pass-through entity generates taxable income in an amount that would trigger the top rate.  The lower individual rate brackets under the TCJA are 10, 12, 22, 24, 32 and 35 percent.  Basically, up to about $75,000 of taxable income (depending on filing status), the individual rates are lower than the 21 percent corporate rate.  So, just looking at tax rates, businesses with relatively lower levels of income will likely be taxed at a lower rate if they are not structured as a C corporation.

As noted, under the TCJA, for tax years beginning after 2017 and before 2026, an individual business owner as well as an owner of an interest in a pass-through entity is entitled to a deduction of 20 percent of the individual’s share of business taxable income.  However, the deduction comes with a limitation. The limitation is the  greater of (a) 50 percent of the W-2 wages paid with respect to the qualified trade or business, or (b) the sum of 25 of percent of the W-2 wages with respect to the qualified trade or business plus 2.5 percent of the unadjusted basis, immediately after acquisition, of all qualified property.  I.R.C. §199A.  Architects and engineers can claim the QBI deduction, but other services business are limited in their ability to claim it.  For them, the QBI deduction starts to disappear once taxable income exceeds $315,000 (MFJ).    

Clearly, the amount of income a business generates and the type of business impacts the choice of entity.    

Another factor influencing the choice between a C corporation or a flow-through entity is whether the C corporation distributes income, either as a dividend or when share of stock are sold.  The TCJA, generally speaking, doesn’t change the tax rules impacting qualified dividends and long-term capital gains.  Preferential tax rates apply at either a 15 percent or 20 percent rate, with a possible “tack-on” of 3.8 percent (the net investment income tax) as added by Obamacare.   I.R.C. §1411.  So, if the corporate “double tax” applies, the pass-through effective rate will always be lower than the combined rates applied to the corporation and its shareholders.  That’s true without even factoring in the QBI deduction for pass-through entities.  But, for service businesses that have higher levels of income that are subject to the phase-out (and possible elimination) of the QBI deduction, the effective tax rate is almost the same as the rate applying to a corporation that distributes income to its shareholders, particularly given that a corporation can deduct state taxes in any of the 44 states that impose a corporate tax (Iowa’s stated corporate rate is the highest). 

Other Considerations

C corporations that have taxable income are also potentially subject to penalty taxes.    The accumulated earnings (AE) tax is in addition to a corporation's regular income tax.  I.R.C. §531.  The AE tax is designed to prevent a corporation from being used to shield its shareholders from the individual income tax through accumulation of earnings and profits, and applies to “accumulated taxable income” of the corporation (taxable income, with certain adjustments.   I.R.C. §535.  There is substantial motivation, even in farm and ranch corporations,  not to declare dividends because of their unfavorable tax treatment.  Dividends are taxed twice, once when they are earned by the corporation and again when corporate earnings are distributed as dividends to the shareholders.  This provides a disincentive for agricultural corporations (and other corporations) to make dividend distributions.  Consequently, this leads to a build-up of earnings and profits within the corporation.

The AE tax (at a rate of 20 percent) applies only to amounts  unreasonably accumulated during the taxable year.  Indeed, the computation of “accumulated taxable income” is a function of the reasonable needs of the business.  So, the real issue is the extent to which corporate earnings and profits can accumulate before triggering application of the accumulated earnings tax.  To that end, the statute provides for an AE credit which specifies that all corporations are permitted to accumulate earnings and profits of $250,000 without imposition of the tax.   I.R.C. §535(c)(2)(A).  However, the credit operates to ensure that service corporations (fields of health, law, engineering, architecture, accounting, actuarial science, performing arts and consulting) only have $150,000 leeway.   I.R.C. §535(c)(2)(B).  But, remember, not every corporation that exceeds $250,000 (or $150,000) of accumulated earnings and profits will trigger application of the accumulated earnings tax.  That’s because the tax applies only if a particular corporation has accumulated more than $250,000 (or $150,000) in earnings and profits  and the accumulation is beyond the reasonable needs of the business. 

The other penalty tax applicable to C corporations is the PHC tax.   I.R.C. §§541-547.  This tax is imposed when the corporation is used as a personal investor.  The PHC tax of 20 percent for tax years after 2012 is levied on undistributed PHC income (taxable income less dividends actually paid, federal taxes paid, excess charitable contributions, and net capital gains).

To be a PHC, two tests must be met.  The first test is an ownership test, and is satisfied if five or fewer people own more than 50 percent of the corporate stock during the last half of the taxable year.  Most farming and ranching operations automatically meet this test.  The second test is an income test and is satisfied if 60 percent or more of the corporation's adjusted ordinary gross income (reduced by production costs) comes from passive investment sources.   See, e.g., Tech. Adv. Memo. 200022001 (Nov. 2, 1991). 

What if the Business Will Be Sold?

If the business will be sold, the tax impact of the sale should be considered.  Again, the answer to whether a corporation or pass-through entity is better from a tax standpoint when the business is sold is that it “depends.”  What it depends upon is whether the sale will consist of the business equity or the business assets.  If the sale involves equity (corporate stock), then the sale of the C corporate stock will likely be taxed at a preferential capital gain rate. Also, for a qualified small business (a specially defined term), if the stock has been held for at least five years at the time it is sold, a portion of the gain (or in some cases, all of the gain) can be excluded from federal tax.   Any gain that doesn’t qualify to be excluded from tax is taxed at a 28% rate (if the taxpayer is in the 15% or 20% bracket for regular long-term capital gains).   Also, instead of a sale, a corporation can be reorganized tax-free if technical rules are followed. 

If the sale of the business is of the corporate assets, then flow-through entities have an advantage.  A C corporation would trigger a “double” tax.  The corporation would recognize gain taxed at 21 percent, and then a second layer of tax would apply to the net funds distributed to the shareholders.  Compare this result to the sale of assets of a pass-through entity which would generally be taxed at long-term capital gain rates. 

Other Considerations

Use of the C corporation may provide the owner with more funds to invest in the business.  Also, a C corporation can be used to fund the owner’s retirement plan in an efficient manner.  In addition, fringe benefits are generally more advantageous with a C corporation as compared to a pass-through entity (although the TCJA changes this a bit).  A C corporation is also not subject to the alternative minimum tax (thanks to the TCJA).  There are also other minor miscellaneous advantages. 

Conclusion

So, what’s the best entity choice for you and your business?  It depends!  Of course, there are other factors in addition to tax that will shape the ultimate entity choice.  See your tax/legal advisor for an evaluation of your specific facts.