File 029438
Tax Bulletin 2018-1: Tax Reform Signed Into Law (File 029438)
A comprehensive tax bulletin analyzing the Tax Cuts and Jobs Act of 2017, signed into law by President Trump on December 22, 2017, covering changes to individual income taxes, estate taxes, and business taxation.
Summary
This tax bulletin from January 2, 2018 provides a detailed overview of the Tax Cuts and Jobs Act, explaining how the reconciled House and Senate tax legislation affects individual income tax rates, deductions, credits, and wealth transfer taxes. The document compares 2017 tax law with 2018 law changes, noting that individual tax provisions are largely temporary (expiring end of 2025) while corporate provisions are permanent. Key changes include new tax brackets (top rate reduced to 37%), doubled standard deduction ($24,000 for married filing jointly), increased child tax credits ($2,000 per child), elimination of the Pease limitation on itemized deductions, and doubled estate tax exemptions ($11.2 million). The bulletin includes analysis showing how different taxpayer profiles are affected differently based on income level, state of residence, and income type.
TAX BULLETIN 2018-1JANUARY 2, 20180BTAX REFORM SIGNED INTO LAWOVERVIEWWithout much fanfare but with typical political controversy, the House and Senate successfully reconciled theirrespective tax bills and the new tax legislation (the “Act”), was signed into law by President Trump on Decembernd22PP, 2017. House and Senate conference committee members leaned in favor of many provisions contained inthe Senate proposal. A significant move in that direction was retaining the elimination of the Affordable CareAct’s individual mandate (the penalty for failing to maintain minimum essential health care coverage) and usingthe Senate’s methodologies for taxing income from pass-through businesses (though some elements of the Housebill entered into the computation). In other circumstances, a true compromise was reached, such as meeting inthe middle on modifications to mortgage interest deductibility.In order to abide by Senate budget reconciliation rules and ensure the Act does not result in budget deficits outsidethe 10-year budget window, the Act makes almost all changes to individual income tax provisions temporary –nearly all expire at the end of 2025. No doubt, this will create tax complexity and political difficulties. On the otherhand, most corporate provisions are permanent. This Tax Bulletin 2018-1 summarizes certain provisions of the1Act and adds observations on income, estate and pass-through taxation.P0F PINDIVIDUAL TAXES2017 LawP1F22018 LawP2F3Individual Tax RatesStandard DeductionKiddie TaxPersonal ExemptionChild / Dependent Tax CreditsTop Capital Gains/DividendTax Rate10, 15, 25, 28, 33, 35, 39.6% 10, 12, 22, 24, 32, 35, 37%Top rate would apply to income over $600,0004for married filing jointly; $500,000 for singleP3F$12,700 ($6,350 if single) $24,000 ($12,000 if single), enhanced for4elderly and blindPUnearned income of a child taxed at parents’ taxrate if higher than child’s rateSimplifies kiddie tax by applying trust rates to4unearned income of a childP$4,050, subject to phase-out Eliminates; merged with higher standard$1,000, per qualifying child subject to phase-outbeginning at $110,000 (married) and $75,000(single taxpayers)deductionP4$2,000 per qualifying child, $500 per non-childdependent; subject to phase-out beginning at4$400,000 (married) and $200,000 othersP20% (plus 3.8% surtax) Maximum rate of 20% is retained; samebreakpoints as current lawTAX BULLETIN 2018-1: TAX REFORM SIGNED INTO LAWINDIVIDUAL TAXES (continued)2017 Law 2018 LawItemized DeductionsRetirement SavingsAMTCarried InterestUnder the “Pease” limitation, up to 80% ofmost itemized deductions are lost whenadjusted gross income exceeds $313,800($261,500 for single taxpayers)Contributions can be placed into deferredaccount, up to contribution capParallel tax calculation with top rate of 28%and $84,500 exemption for married taxpayers($54,300 others); phase out of exemptionbegins at $160,900 for married taxpayers($120,700 others)Retains character as capital gain and eligiblefor preferential tax ratesRepeals the Pease limitation on itemizeddeductionsMortgage interest deduction: $750,000 limiton acquisition indebtedness retained(principal or secondary residence);deduction for home equity loan repealedDeduction for state and local income, salestax and real property taxes limited to$10,000 in aggregate ($5,000 for marriedfiling separately); deduction allowed forstate and local taxes on trade or business orif related to production of income. Paymentof income taxes in 2017 for a subsequent4year would not be deductible in 2017.PDeduction for medical expenses retained4and liberalized for 2017 and 2018 PUnchangedRetains and modifies AMT; exemptionsraised to $109,400 (married) and $70,300(others); phase-out of exemption begins at$1 million for married taxpayers ($500,000others)P4Requires three-year holding period to attainlong-term capital gains rateInvestmentSurtax3.8% tax on “net investment income” Unchanged – continues to applyOBSERVATIONS – INDIVIDUAL TAXESUnder the Act, there will be winners and losers on the personal income tax side. Generally, wage earners from5no-tax statesP4F P could see tax savings under the Act. For instance, a Florida taxpayer earning $1 million withmoderate itemized deductions may see a tax savings of about $30,000 under the Act. A similar taxpayer in New6York State may see a savings of about $3,500 according to our preliminary analysis.P5F PConversely, very high-wage earners from high-tax states could see a higher tax bill. A taxpayer earning $3 millionin New York City may see a significant tax increase: $44,000 under the Act, due in part to the loss of significantdeductions. A similar taxpayer in Florida would see a tax savings of about $91,000 under the Act (primarily dueto the lower top rate, elongated 35% tax bracket and regaining itemized deductions that are no longer phasedout),according to our preliminary analysis.Married couples could fare worse than two single taxpayers with a similar amount of income. The so-calledmarriage penalty hits particularly hard under the new tax brackets. The penalty is also exacerbated by permittingmarried couples only a $10,000 state income/real estate tax deduction, but allowing each of two single filers adeduction in the same amount ($20,000 combined). Under the changes, a single taxpayer with $500,000 of wages2TAX BULLETIN 2018-1: TAX REFORM SIGNED INTO LAWliving in a state that imposes a state income tax (and $10,000 of charitable deductions) would pay a federal tax ofabout $143,690. Two single taxpayers would pay a total of twice that, or $287,380. However, if these twotaxpayers were married, their joint tax liability would jump to $298,280, an increase of $10,900.It appears that state of residence, type of income (wages versus new “qualified business income”), and mortgageinterest will be among the most important factors for determining whether one is better or worse off under theAct.UCapital GainsU. Although income tax rates and tax brackets will significantly change in 2018, the long- termcapital gains rate will remain the same. The income limits for imposing the 15% and 20% capital gain rateswill also remain the same; the 20% rate will apply when taxable income exceeds $479,000 (for marriedfiling jointly). However, the Act’s combination of lower rates and fewer deductions could mean that ataxpayer’s “taxable income” could rise in 2018, meaning the taxpayer would expose more capital gain tothe 20% bracket.U3.8% Surtax. U The Act does not directly change the 3.8% surtax imposed on “net investmentincome.” However, it indirectly changes it. When calculating a taxpayer’s net investment income, ataxpayer can deduct investment expenses (UafterU application of the 2% floor) and deductible state incometaxes, to the extent those are properly allocable to net investment income. The deductibility of those twoexpenses changes in 2018 -- investment expenses are nondeductible, and state income taxes (with otherstate taxes) are limited to $10,000. Those expenses might not reduce net investment income in 2018, andas a result the 3.8% surtax might increase.WEALTH TRANSFER TAXES2017 Law 2018 LawEstate /Gift / GST Tax40% rate, $5,490,000 exemption (indexed forinflation)Commencing 2018, exemption for estate, giftand GST tax doubled from $5.6 million to $11.2million (indexed for inflation)Enhanced exemption expires at the end of 2025Tax Basis Upon Death Step-up for estate property Same as current; step-up for estate propertyOBSERVATIONS – WEALTH TRANSFERThe transfer tax proposals in the Act extend the already limited reach of the federal estate, gift and GST taxes toeven a smaller subset of only the wealthiest of taxpayers. There would be a temporary doubling of the exemptionsuntil the end of 2025, reverting to current law in 2026. The step-up in basis at death would continue the entiretime. Given the high exemption amounts ($11.2 million for individuals and $22.4 million for a married couple in2018), that would effectively repeal the tax for most people. This change would have a significant effect on bothtestamentary and lifetime estate planning.UTestamentary planningU. It is common for wills and other testamentary documents (such as revocable trusts) tocontain dispositions that reference the estate (and GST) exemptions that are in effect at death. These so-called“formula” provisions would automatically adjust for changes in the exemption amounts. While this may achievea beneficial tax result, the temporary doubling of the exemptions may also cause unintended consequences tothe dispositive plan. For example, a common plan is to leave an amount equal to the estate exemption to a bypass3TAX BULLETIN 2018-1: TAX REFORM SIGNED INTO LAWtrust, and the balance for the surviving spouse, either outright or in a marital trust. For a hypothetical $10 millionestate, if death occurred in 2017 that would result in roughly half to the bypass trust and half to thespouse. However, if death occurs in 2018 to 2025, that would result in the entire estate being left to the bypasstrust. Complications could further arise for individuals living in certain states which impose their own estatetax. Wills and other testamentary documents should be reviewed to make certain they accurately reflect thetestator’s wishes. As always, documents should be drafted with flexible provisions that can be adjusted for futurechanges.ULifetime planningU. Lifetime gifts are often made in order to reduce the estate tax that would otherwise beincurred at death. While the doubling of the exemptions may avoid the need for lifetime gifting for certainindividuals, that may only be the case if death occurs before 2026. Accordingly, the tax consequences of makinga current gift may have to be compared with alternative estate tax scenarios. The temporary nature of theincrease in transfer tax exemptions also raises the issue of whether it is advisable to lock-in the higher exemptionby making a lifetime gift before 2026. (Similar issues arose in 2012, when there was uncertainty whether the $5million estate exemption would continue in 2013.) This raises the question of whether the gift could bestructured in a manner that could be “undone” if the higher exemption is made permanent. It also raises thequestion of whether there would be recapture (so-called “clawback”) if a lower exemption is in effect at death. Inthat regard, it appears that the new legislation would eliminate the concern about recapture. In sum, theuncertainty of the estate exemption amount at death will make lifetime planning more challenging.CORPORATE TAXES2017 Law 2018 LawTop C-Corporate Rate 35% 21% (effective 2018)AMT Parallel tax calculation with top rate of 20% Eliminates corporate AMTBusiness InvestmentsLimited immediate expensing; balance subject todepreciationImmediate expensing for new and usedqualified property acquired and placed inservice after September 27, 2017 and beforeJanuary 1, 2023 (Jan. 1, 2024 for certainproperty) and partial expensing for otherproperty acquired after 2022 and before 2027.Interest ExpenseNo limitation Limited to business interest income, plus 30%of a business’s adjusted taxable income(EBITDA for 2017-2021 and EBIT thereafter);with special rules for “floor plan financingindebtedness”; full deduction for smallbusinesses with gross receipts of $25 million orless4TAX BULLETIN 2018-1: TAX REFORM SIGNED INTO LAWPASS-THROUGH ENTITY TAXES2017 Law 2018 LawTop Rate: Pass-ThroughEntities (S-corporations,LLCs, LLPs andPartnerships) / SoleProprietorshipsPass-Through Entities –Service BusinessesSubject to tax at individual rates up to 39.6%An individual taxpayer generally may deduct20% of domestic qualified business incomefrom a partnership, S corporation, or soleproprietorshipP4In the case of a taxpayer who has qualifiedbusiness income from a partnership, Scorporation or sole proprietorship, theamount of the deduction is limited to thegreater of (i) 50% of the W-2 wages paid bybusiness or (ii) sum of 25% of W-2 wages paidby business and 2.5% of business capital. Thiswage limitation (i) does not apply iftaxpayer’s taxable income is less than$157,500 ($315,000 for joint return); (ii)applies fully if taxable income exceeds$207,500 ($415,000 for joint return); and (iii)applies proportionately if taxable income isbetween those two limitsTrusts and estates that own business interestsqualify for this deductionDeduction is a post-AGI item, even fortaxpayers not itemizing deductionsSubject to tax at individual rates up to 39.6% For “specified service business,” (i) the 20%deduction applies fully if taxpayer’s taxableincome is less than $157,500 ($315,000 forjoint return); (ii) there is no deduction iftaxable income exceeds $207,500($415,000 for joint return); and (ii) there isa partial deduction if taxable income is4between those two limits.PService business includes accounting, law,consulting, investing, etc., but excludesengineering and architecture servicesOBSERVATIONS – PASS-THROUGH ENTITIESAs originally proposed, the House and Senate took fundamentally different approaches to the taxation of passthroughentities (sole proprietorships, partnerships, LLCs, LLPs and S-corporations). While they differed from eachother, they shared the goal of creating preferential treatment for certain pass-through business income. The Actlargely took the Senate’s approach but adopted a few elements of the House’s approach. The Act approachessmall business relief by permitting a non-itemized deduction of 20% of qualified business income; the remaining80% would then be subject to normal tax rates. Therefore, the top tax rate for business income would be 29.6%(80% x 37% = 29.6%). The provision is riddled with a host of complex limitations. For taxpayers not in the topincome tax bracket, the value of the deduction will depend on the marginal bracket that would otherwise beimposed on the income.Owners of service businesses (e.g., law, accounting and consulting, etc., but not engineering or architecturalservices) generally would be eligible for the 20% deduction unless taxable income exceeds $315,000 for marriedfiling jointly ($157,500 for others). The benefit of the 20% deduction is phased out and fully eliminated over the5TAX BULLETIN 2018-1: TAX REFORM SIGNED INTO LAWnext $100,000 of taxable income for married filing jointly ($50,000 for others). The following is a simple examplefor a pass-through entity.EXAMPLEH and W file a joint return on which they report taxable income of $200,000 (determined without regardto this provision). H has a sole proprietorship that is a qualified business and is a “specified servicebusiness.” W is an employee and receives only W-2 wages from her job.H’s qualified business income is $150,000. 20 percent of the qualified business income is $30,000.Because H and W’s taxable income is below the $315,000 threshold amount for a joint return, (i) the wagelimit does not apply to H’s qualified business, and (ii) the limitation applicable to specified servicebusinesses does not apply. H’s deductible amount for qualified business income is $30,000.On their joint return, H & W would qualify for a $30,000 deduction, reducing their taxable income from$200,000 to $170,000. That taxable income would then be subject to regular income rates.While upper-income wage earners in high-tax states generally do not fare well under the Act, taxpayers withsubstantial income from pass-through businesses should see a tax benefit compared with current law, since theweighted average rate of business income would be approximately 30%. Capital gains, dividends, and otherpreferential income from a business would not be considered “business income” and would continue to be taxedat preferential tax rates.Under the initial Senate version, the pass-through deduction was not available to trusts or estates. Under the Act,however, trusts and estates can benefit from the pass-through deduction.CORPORATE INTERNATIONAL TAXES2017 Law 2018 LawInternational CorporateTax – ScopeOne-Time DeemedRepatriation of ForeignEarningsWorldwide with deferral availableNo100% of foreign-source portion of dividendspaid by foreign corporation to U.S. corporateshareholder (that owns at least 10%) wouldbe exempt from U.S. taxationU.S. shareholders owning at least 10% of aforeign corporation would be taxed on post-1986 net foreign earnings and profits (15.5%on earnings and profits comprising cash orcash equivalents; 8% on remaining earningsand profits); may elect to pay tax over aperiod of up to 8 years, in annual installmentsthat allow more to be paid at the back endOTHER PROVISIONSThe Act has other provisions of note that are not included in the charts above.• URoth recharacterization no longer allowedU. Under 2017 law, if you converted a traditional IRA to aRoth IRA, you could “recharacterize” that conversion within certain time limits, in effect undoing it.For tax years beginning after 2017, the Act repeals this rule, meaning you can no longer recharacterize6TAX BULLETIN 2018-1: TAX REFORM SIGNED INTO LAWa Roth conversion. From the current language of the effective date, it is unclear whether this wouldprevent a 2017 Roth conversion from being recharacterized in 2018.• UTaxation of alimonyU. Under 2017 law, alimony and separate maintenance payments were deductibleby the payor and includible in income by the recipient. (Child support payments are not treated asalimony.) The House bill proposed to reverse this treatment, making alimony and separatemaintenance payments non-deductible to the payor and non-taxable to the recipient. The Senate billhad no similar provision. The Act generally follows the House bill but delays the effective date by oneyear, generally being effective for any divorce or separation instrument executed after December 31,2018.• USale of principal residence exclusionU. Under 2017 law, up to $250,000 of gain ($500,000 if filingjointly) on the sale of a principal residence could be excluded from income. Among the requirementsis that the principal residence be owned and used as your principal residence for two out of the lastfive years. You could use this rule only once every two years. This exemption was available regardlessof income. Both the House and Senate Bills proposed that (i) the principal residence must be ownedand used as your principal residence for five out of the last eight years and (ii) you can use this ruleonly once every five years. The House proposal also contained a limit to the exclusion if incomeexceeded a certain amount. In a surprise, none of these modifications were included in the Act. Asa result, no changes were made to the principal residence exclusion rules.• UIdentification of securities sold, exchanged and giftedU. Gain or loss generally is recognized forFederal income tax purposes on the sale of property. A taxpayer’s gain or loss on a disposition ofproperty is the difference between the amount realized on the sale and the taxpayer’s cost basis inthe property. Under 2017 law, if a taxpayer has acquired stock in a corporation on different dates orat different prices and sells or transfers some of the shares of that stock, and the lot from which thestock is sold or transferred is not adequately identified, the shares sold are deemed to be from theearliest acquired shares (the “first-in-first-out” rule; FIFO). However, under 2017 law, if a taxpayerspecifically identifies the shares of stock to be sold, the shares of stock treated as sold are the sharesthat have been identified. The same rules apply to charitable gifts and gifts to trusts or familymembers. Although the Senate bill had proposed eliminating the ability to specifically identify lotsand mandating that the FIFO rule be used, the Act makes no changes; the 2017 rules will remain inplace.• ULike-kind exchangesU. Under 2017 law, real estate and personal property could qualify for a taxdeferredlike-kind exchange. The property had to be held either for investment or for use in a tradeor business. Under the Act, like-kind exchanges will be available only for real estate, not personalproperty. This will end, for example, like-kind exchanges of art. This new rule is effective for transfersafter 2017. However, there is a transition rule to allow like-kind exchanges of personal property tobe completed on a tax-free basis if you either disposed of the relinquished property or acquired thereplacement property on or before December 31, 2017.• U529 Savings PlansU. Under 2017 law, funds in 529 Saving Plans could be withdrawn tax-free if used forhigher education expenses. The Act expands the type of expense that can be paid via a 529 SavingsPlan and allows up to $10,000 per year to be used for elementary and high school tuition andspecifically allows funds to be used for private and religious schools. A provision that would have also7TAX BULLETIN 2018-1: TAX REFORM SIGNED INTO LAWallowed funds to be used for home schooling was dropped at the last minute and is not in the finallegislation.• UCharitable gifts U. A charitable contribution deduction is limited to a certain percentage of theindividual’s adjusted gross income (AGI), and this limitation varies depending on the type of propertycontributed and the type of exempt organization receiving the property. Under 2017 law, cashcontributed to public charities, private operating foundations, and certain non-operating privatefoundations generally could be deducted up to 50% of the donor’s AGI. Under the Act, this 50%limitation is increased to 60%. The provision retains the 5-year carryover period to the extent that thecontribution amount exceeds 60% of the donor’s AGI.• UInvestment expenses and investment interestU. Under 2017 law, investment expenses weredeductible as a “miscellaneous itemized deduction” if, and to the extent, they exceed 2% of AGI. TheAct repeals the deduction for “miscellaneous itemized deductions” that are subject to the 2% AGIlimitation, such as investment management expenses. Under 2017 law and current law, investmentinterest is not a “miscellaneous itemized deduction.” Therefore, the deduction for investment interestremains untouched and continues to be deductible to the extent of investment income.CONCLUSIONGiven the significant tax changes in 2018, planning will be a challenge. It is important to understand theimplications that the Act can have on your particular tax situation.National Wealth Planning Strategies1Tax Bulletin 2017-5 summarized the key tax provisions in HR1, known as the Tax Cuts and Jobs Act (the “House Bill”), whichwas passed (227-205) by the House on November 16, 2017. Tax Bulletin 2017-6 summarized the key tax provisions in theinitial Senate bill HR1, also known as the Tax Cuts and Jobs Act, which was subsequently amended and passed (51-49) by thefull Senate on December 2, 2017. The final Senate version was similarly summarized in Tax Bulletin 2017-7. Tax Bulletin 2017-8 summarized the reconciled bill agreed to by both chambers. Tax Bulletin 2017-9 summarized the final legislation, includingsome year-end planning ideas that are no longer relevant.2Inflation-adjusted amounts for 2017.3The name “Tax Cut and Jobs Act” had to be removed; this legislation was signed into law by President Trump on December22, 2017.4This proposed change would be effective starting in 2018 and would not apply to taxable years beginning after December31, 2025 (e.g. sunsets at the beginning of 2026).5There are nine states that impose no state income tax: AK, FL, NH, NV, SD, TN, TX, WA and WY (NH and TN impose a tax onlyon dividends and interest).6This illustration assumes the following itemized expenses: charitable gifts $10,000, real estate tax $30,000 (limited to$10,000 under the proposal), mortgage interest of $15,000, and appropriate state income taxes, where applicable.IMPORTANT: This publication is designed to provide general information about ideas and strategies. It is for discussionpurposes only since the availability and effectiveness of any strategy are dependent upon your individual facts andcircumstances. Clients should always consult with their independent attorney, tax advisor, investment manager, andinsurance agent for final recommendations and before changing or implementing any financial, tax, or estate planningstrategy.Neither U.S. Trust nor any of its affiliates or advisors provide legal, tax or accounting advice. Clients should consult with theirlegal and/or tax advisors before making any financial decisions.U.S. Trust operates through Bank of America, N.A., and other subsidiaries of Bank of America Corporation.Bank of America, N.A., Member FDIC.© 2018 Bank of America Corporation. All rights reserved. | NWPSTaxAct | January 20188