As you are now keenly aware, with the passage of the Tax Cuts and Jobs Act (TCJA) in December 2017, the individual and business tax codes have been dramatically overhauled, with many changes effective in 2018 and beyond. Below we highlight several easy-to-apply tax planning opportunities for 2018.
Take Advantage of Lower Tax Rates
In general, the tax rates in 2018 are lower than in 2017, with the highest bracket being reduced from 39.6 percent to 37 percent. In addition, many of the new lower rates are effective for taxpayers at higher income levels than in 2017. In particular, as demonstrated in the chart below, married filing jointly taxpayers would see lower marginal tax rates in 2018 for incomes up to $400,000 and over $600,000. Single taxpayers would see lower marginal tax rates for incomes up to $200,000 and over $500,000.
|Married Filing Jointly & Surviving Spouses|
|2017 Tax Rates||2018 Tax Rates|
|10%||0 to $18,650||10%||0 to $19,050|
|15%||$18,651 to $75,900||12%||$19,051 to $77,400|
|25%||$75,901 to $153,100||22%||$77,401 to $165,000|
|28%||$153,101 to $233,350||24%||$165,001 to $315,000|
|33%||$233,351 to $416,700||32%||$315,001 to $400,000|
|35%||$416,701 to $470,700||35%||$400,001 to $600,000|
|39.6%||Over $470,700||37%||Over $600,000|
In addition, the capital gains tax structure remains unchanged, with short-term gains being taxed at ordinary income rates, and long-term gains being taxed at 0 percent, 15 percent and 20 percent, based on income. While the long-term capital gains rate is no longer tied to the bracket you are in, but instead tied to your taxable income, the effect is quite similar in that the 2018 threshold to be subject to the 20 percent capital gains rate is over $479,000 for married filing jointly taxpayers and over $425,800 for single taxpayers (and indexed for inflation).
Thus, it remains important to time capital gains and losses to ensure that, wherever practicable, securities with appreciated value are held for one year and one day to achieve long-term status. While loss-harvesting strategies may be an effective tool to shield gains from capital gains tax, a limited amount of ordinary income may also be offset by capital losses, which may be particularly advantageous for high income taxpayers. If your capital losses exceed your capital gains, you may utilize up to $3,000 per year as a shelter against income, particularly ordinary income, with any excess losses carried forward. The key to this strategy is evaluating your holdings and selling all, or a portion, of those holdings that have lost value to offset realized gains.
Larger Standard Deduction Versus Limited Itemized Deductions
While the enactment of the TCJA has nearly doubled the amount of the standard deduction available to you (as demonstrated in the chart below), it has suspended the deduction for personal exemptions beginning in 2018.
|Standard Deduction (Based on Filing Status)||2017||2018|
|Married Filing Jointly||$12,700||$24,000|
|Head of Household||$9,350||$18,000|
|Single (including Married Filing Separately)||$6,350||$12,000|
|Personal Exemption for each Taxpayer, Spouse and Dependent||$4,050||$0|
In addition, the TCJA limits the itemized deductions available to you, capping the deduction for state and local taxes (SALT) to $10,000 per return (or $5,000 in the case of married individuals filing separately), (see our Alert regarding planning tips surrounding the SALT deduction cap) and suspending all miscellaneous itemized deductions which were previously subject to the 2 percent floor. This includes the deductions for tax preparation fees, investment advisory fees, unreimbursed employee expenses, hobby expenses (discussed further below) and legal fees for the collection or production of taxable income, among others.
Between the larger standard deduction and the limited itemized deductions, the net effect of the TCJA is that many more taxpayers will be claiming the standard deduction in 2018 as compared to previous years. However, if you itemized in 2017, it is best to continue tracking the remaining itemized deductions available to you, such as charitable contributions, medical expenses and mortgage interest, among others, to ensure that you maximize the deductions available to you.
Maximize Home Mortgage Interest Deductions
The TCJA reduced the mortgage interest deduction limitation to interest on up to $750,000 of debt ($375,000 in the case of a married individual filing a separate return), for acquisition indebtedness incurred after December 15, 2017. The mortgage interest from both your primary and secondary residences remain deductible, up to this balance limit on new debt. In addition, debt that was originally incurred before December 15, 2017, will remain subject to the pre-TCJA $1 million limitation, even if it is refinanced after this date. In general, home equity indebtedness is not deductible beginning in 2018, unless the indebtedness was used to buy, build or substantially improve a qualified home.
In certain limited circumstances where you are seeking to buy a second home or take out a home equity loan, a refinancing of the pre-TCJA loan into an interest-only loan may make sense to increase cash flow, while retaining interest deductibility. But as we often proclaim: Don’t let the proverbial tax tail wag the financial dog.
If refinanced funds are used for multiple purposes, taxpayers and their advisors will have to carefully track how the proceeds were used and the balance of the indebtedness annually to maximize allowable deductions.
Use Donor Advised Funds to “Bunch” Charitable Contributions
Many taxpayers will see greater benefit from the standard deduction as compared to their allowable itemized deductions in 2018. For taxpayers “on the cusp” of the standard deduction threshold depending on the level of their itemized deductions for 2018, they may consider “bunching” charitable contributions by doubling charitable contributions in 2018, while forgoing contributions in 2019. By using a donor advised fund (DAF), you can independently control when the funds are contributed to the DAF (thus allowing a deduction), versus when the charity they wish to support (such as a school, church, synagogue or other nonprofit) receives the funds.
By bunching donations in alternating years, the taxpayer can get additional benefits from itemized deductions only in years in which their itemized deductions would otherwise near or exceed the standard deduction, while maintaining annual donations to the charities they regularly support.
Additionally, remember that if you regularly engage in charitable giving while you are also active in the securities market, consider contributing appreciated securities to the charity or DAF as opposed to recognizing long-term gain and contributing cash.
Take Advantage of the New Child Tax Credit and Dependent Credit
Under the TCJA, the Child Tax Credit is doubled from a maximum of $1,000 per qualifying child under 17, to a maximum of $2,000. In addition, the Adjusted Gross Income (AGI) thresholds at which phaseout of the credit starts is greatly increased, as illustrated in the chart below:
|AGI Thresholds at which the Child Tax Credit is Reduced|
|Single/Head of Household||$75,000||$200,000|
|Married Filing Separately||$55,000||$200,000|
|Married Filing Jointly||$110,000||$400,000|
Further, the TCJA provides for a $500 credit per dependent that is age 17 or over, or does not meet the relationship test of a qualifying child, subject to the same thresholds. Additionally in 2018, the child tax credit is refundable at 15 percent of earnings exceeding $2,500, up to $1,400 per child for taxpayers below certain income thresholds.
We expect many more taxpayers to qualify for the Child Tax Credit and Dependent Credit in 2018. To the extent they are at or near the phaseout thresholds, with the ability to accelerate deductions and defer income, they may see increased benefit by lowering their AGI and maximizing the newly enhanced Child Tax Credit and new Dependent Credit.
Revisit Your Qualified Tuition Plans
With the TCJA, qualified tuition plans (QTP), including 529 plans, have been expanded to allow for tax-free distributions used to pay eligible expenses at elementary and secondary public, private and religious schools, up to a limit of $10,000 per year. Previously, in order to be tax-free, distributions had to be used for eligible expenses at colleges, universities, vocational schools or other postsecondary schools.
If you have a child or grandchild with primary or secondary school expenses, you may wish to route such expenses through a QTP to obtain tax-free growth and state income tax deductions, where available.
For 2018, children who are age 18 or under, or who are full-time students ages 19 to 23 whose earned income does not exceed one-half of their support, can take advantage of $1,050 taxed at the child’s tax bracket for 2018. Additionally, through 2025, the “kiddie tax” has been modified to apply the ordinary and capital gain tax rates of estates and trusts to the net unearned income of the child in excess of $1,050. For other children outside of the age range or status above, the kiddie tax does not apply.
For families concerned about obtaining financial aid for college, parents may wish to limit the assets held in the child’s name, as children’s assets count more heavily against awards of financial aid than do assets in the parent’s name.
Watch Out for New Alimony Rules
The TCJA changes the treatment of alimony by payors and payees subject to divorce decrees, separation agreements and certain modifications entered into after December 31, 2018. While generally alimony paid is deductible by the payor, and included in income of the payee, for divorce decrees and settlement agreements entered into before December 31, 2018, after this date, alimony paid is a nondeductible expense and is nontaxable to the recipient. In addition, a special rule allows court modifications to pre-existing agreements after December 31, 2018, where the parties can elect to have the new rules apply.
Depending on your individual situation, and the agreement between the parties that is negotiated, you may wish to consider accelerating or deferring divorce proceedings that are currently pending, or modify existing agreements in certain circumstances.
Consider Investing in Qualified Opportunity Zones
The TCJA created tax breaks for those investing in in Qualified Opportunity (QO) Zones, which are generally low-income communities meeting certain requirements. By investing in QO Zones, one can temporarily defer gains from the sale of property and permanently exclude capital gains on the disposition of QO Zone assets held for 10 years.
As of June 14, 2018, over 8,000 QO Zones have been designated by the IRS in 52 states and U.S. possessions. As these tax breaks remain in their infancy, we are monitoring the opportunities available for effective tax planning.
Monitor State Response to Tax Reform
Many states base their income tax regime on the federal tax law, often referred to as “piggy-back” states. With the wholesale changes to the federal tax code as a result of the TCJA, many taxpayers will face different results for their state and local income taxes in 2018 as compared to 2017. For example, you may benefit from claiming a standard deduction on your federal return, while itemizing for state tax purposes.
In addition, several states, including California, Illinois, New York and New Jersey, have either introduced or passed legislation granting state tax credits for contributions to state charitable funds, which are designed to allow a charitable contribution deduction on the federal return, thus mitigating the effects of the $10,000 limitation on state and local taxes, as discussed above.
It is highly likely that the IRS will challenge these charitable contributions for taxpayers adventurous enough to be among the first to claim them. We are monitoring the developments in this area closely, as developments are certain to impact tax planning. For more information on this topic, we recommend reading our recent Alert: How to Mitigate the Federal SALT Deduction Limitation Under the New Law.
Beware of the Alternative Minimum Tax
While the TCJA eliminated the corporate Alternative Minimum Tax (AMT), it remains in effect for individual taxpayers. However, we expect fewer taxpayers will be subject to the AMT in 2018 than in 2017 due to two primary factors:
- The AMT exemption has increased in 2018, from $55,400 to $70,300 for single taxpayers and $86,200 to $109,400 for joint filers, with phaseouts in 2018 starting at incomes above $500,000 for single taxpayers and $1 million for joint filers, up from $123,100 and $164,100 for single and joint filers in 2017, respectively.
- Many of the regular tax deductions that are added back to AMT income were limited or eliminated for 2018 (such as the miscellaneous itemized deductions and state and local tax deductions).
While you may no longer be subject to the AMT in 2018, some taxpayers with income from AMT adjustment items should still be wary of the AMT. Particularly, individuals with significant income from incentive stock options or small businesses with large depreciation differences between the regular tax and AMT may still be captured by the AMT. Of course, with careful planning of the timing of this income, the AMT burden may be reduced or eliminated. Even with the relaxed AMT burden, it remains advisable to perform a multiyear analysis to measure the impact of various planning techniques.
Convert Disallowed Hobby-Related Deductions to Allowed Deductions
If you operate an unincorporated for-profit business activity that generates a net tax loss for the year (deductible expenses in excess of revenue), you can generally deduct the loss on your federal income tax return. That means the loss can be used to offset income from other sources, such as dividends and interest, and reduce your federal income tax accordingly. However, the tax results are less favorable if your money-losing activity must be treated as a not-for-profit hobby.
Prior to the TCJA, you could potentially deduct hobby-related expenses up to the amount of income from the hobby. However, you had to treat most of those expenses as miscellaneous itemized deductions that could only be written off to the extent they exceeded 2 percent of Adjusted Gross Income (AGI). Also, if you were a victim of the dreaded AMT for the year, your otherwise-allowable hobby deductions could be completely disallowed under the AMT rules. To make matters worse, you had to report 100 percent of hobby-related income on your return.
For tax years 2018-2025, the TCJA eliminates write-offs for miscellaneous itemized deductions that under prior law were subject to the 2 percent-of-AGI deduction threshold. This change wipes out all deductions from hobby activities other than expenses that can be written off in any event (such as home mortgage interest and property taxes). So, under the new law, most hobby-related deductions are completely disallowed for regular tax purposes as well as for AMT purposes, and you must report 100 percent of hobby-related income. Not a good result. Moreover, we expect the IRS to focus even more attention on taxpayers with money-losing activities.
Business status is good for tax purposes; hobby status is bad, especially after the TCJA. The business-versus-hobby issue has been a hot button for the IRS for many years, and the TCJA only adds fuel to the fire. If you are participating in an activity that is losing money, it is more important than ever to establish that the activity is an active business that has not yet become profitable. With careful planning, you can avoid the hobby classification, which results in the elimination of hobby-related deductions.
Maximize Your Qualified Business Income Deduction
For many noncorporate taxpayers, the most anticipated change as a result of the TCJA is the 20 percent deduction for qualified business income. For many owners of small businesses, such as sole proprietorships, partnerships, S corporations or owners of rental property, this new deduction could result in a substantial tax savings. Certain types of investment-related items are excluded from Qualified Business Income (QBI), such as capital gains or losses, dividends and interest income (unless the interest is properly allocable to a business). Employee compensation and guaranteed payments to a partner are also excluded.
Generally, business owners fall into one of three categories:
- Business owners with taxable income below $157,500 (or $315,000 in the case of a married filing jointly return);
- Business owners with taxable income above $157,500 (or $315,000 for married filing jointly) with income from a specified service business; and
- Business owners with taxable income above $157,500 (or $315,000 for married filing jointly) with income from a business that is not a specified service business.
For the first category of business owners, they will generally be entitled to a QBI deduction of 20 percent of their QBI (assuming that their QBI is less than their taxable income). For the second category, the specified service business owners (such as those in the fields of health, law, accounting, actuarial science, performing arts, consulting, athletics, financial services and brokerage services), the QBI deduction will be phased out based on taxable income between $157,500 and $207,500 (or $315,000 and $415,000 for married filing jointly). For the third category, you may claim a full 20 percent QBI deduction, but only if 20 percent of QBI is less than either:
- 50 percent of the W-2 wages paid by the business, or
- 25 percent of the W-2 wages paid by the business plus 2.5 percent of the unadjusted basis of depreciable property held by the business.
While this new deduction could potentially allow for a sizeable benefit, careful tax planning may be needed to ensure the deduction is maximized. As the deduction may be limited based on a taxpayer’s taxable income, W-2 wages paid by the business and the unadjusted basis of qualified property owned by the business, numerous strategies for maximizing the deduction are available.
For example, a business may need to adjust the wages paid to employees, or convert independent contractors to employees in certain circumstances, to ensure the W-2 wage base is adequate to claim the deduction. Or, if the business has substantial assets and is using the unadjusted basis to qualify for the deduction, perhaps the business acquires more assets to boost the basis. Businesses may also attempt to move income from specified service businesses to nonspecified service businesses, through divestitures and spin-offs. Finally, and most importantly, partners, shareholders and other business owners should plan to maximize above-the-line (such as retirement plan contributions and health insurance, among others) and itemized deductions for purposes of reducing taxable income, particularly if the business is a specified service trade or business.
On August 8, 2018, the IRS issued proposed regulations of the QBI deduction. With public comments accepted until October, we expect the rules may change slightly prior to year end. With careful planning, you can maximize the 20 percent deduction for qualified business income.
Take Advantage of Increased Bonus Depreciation and Section 179 Deductions
Prior to the TCJA, businesses could expense up to $510,000 of qualified business property purchased during the year. Additionally, bonus depreciation could be claimed on 50 percent of qualified new property placed in service during the year. The TCJA increased the expense limitation to $1 million, starting in 2018. In addition, property placed in service before January 1, 2023, is now entitled to bonus depreciation of 100 percent. Also, the TCJA increased the depreciation limits for passenger vehicles dramatically, allowing greater expensing in earlier years for business vehicles. The definition of qualified property for purposes of bonus depreciation has also been expanded to include the purchase of used property, so long as you have not previously used the property (such as in a sale-leaseback transaction).
By enacting more generous depreciation and 179 deductions, Congress intended to spur spending and boost the economy. In fact, now is the time to make that purchase your business put off last year to take advantage of these highly favorable provisions.
Net Operating Losses
For business Net Operating Losses (NOLs) for tax years ending after 2017, losses above $250,000 ($500,000 for joint filers) may be carried forward indefinitely, and the general two-year carryback is repealed. Also, business losses of all taxpayers (other than C corporations) must be carried forward whether active or passive, and may no longer be applied presently against nonbusiness income.
With the elimination of the carryback provision, businesses with 2018 NOLs will no longer obtain as large of an immediate benefit by applying the NOLs to the previous two years. However, with an indefinite carryforward, you may need to modify record retention policies as some 2018 and future NOLs may remain relevant for longer periods than under prior law.
With the introduction of the TCJA, and the staggering of its effective dates, 2018 remains a year ripe for significant benefit with advance tax planning. By investing a little time now, you may discover significant tax saving opportunities well worth the time it takes to make a phone call or send an email.
We expect significant developments and guidance to follow in the coming months with regards to many of the uncertainties contained in the new law and its unintended effects. Further, there will likely be modification to certain state tax regimes, including pending and enacted state legislation. The landscape is changing quite frequently.
As major legislative developments and opportunities emerge, we are always available to discuss the impact of a new or pending tax law on your personal or business situation.
For Further Information
If you would like more information about this topic or your own unique situation, please contact John I. Frederick, JD, LLM, Steven M. Packer, CPA or any of the practitioners in the Tax Accounting Group. For information about other pertinent tax topics, please visit our publications page.