Qualified Business Income Deduction – Proposed Regulations

Overview

As a result of the Tax Cuts and Jobs Act (TCJA), for tax years beginning after 2017 and before 2026, a non C corporate business owner as well as an owner of an interest in a pass-through entity is entitled to a deduction of 20% of the taxpayer’s share of qualified business income (QBI) associated with the conduct of a trade or business in the United States. I.R.C. 199A. The QBID replaces the DPAD, which applied for tax years beginning after 2004. The TCJA repealed the DPAD for tax years beginning after 2017.

The basic idea behind the provision was to provide a benefit to pass-through businesses and sole proprietorships that can’t take advantage of the lower 21 percent corporate tax rate under the TCJA that took effect for tax years beginning after 2017 (on a permanent basis).  The QBID also applies to agricultural/horticultural cooperatives and their patrons.

Last week, the Treasury issued proposed regulations on the QBID except as applied to agricultural/horticultural cooperatives.  That guidance is to come later this fall.  The proposed regulations did not address how the QBID applies to cooper 

The proposed regulations for the QBID – that the topic of today’s post.

QBID Basics

The QBI deduction (QBID) is subject to various limitations based on whether the entity is engaged manufacturing, producing, growing or extracting qualified property, or engaged in certain specified services (known as a specified service trade or business (SSSB)), or based on the amount of wages paid or “qualified property” (QP) that the business holds.  These limitations apply once the taxpayer’s taxable income exceeds a threshold based on filing status.  Once the applicable threshold is exceeded the business must clear a wages threshold or a wages and qualified property threshold. 

Note:  If the wages or wages/QP threshold isn’t satisfied for such higher-income businesses, the QBID could be diminished or eliminated. 

What is the wage or wage/QP hurdle?  For farmers and ranchers (and other taxpayers) with taxable income over $315,000 (MFJ) or $157,500 (other filing statuses), the QBID is capped at 50 percent of W-2 wages or 25 percent of W-2 wages associated with the business plus 2.5 percent of the “unadjusted basis immediately after acquisition” (UBIA) of all QP.  But those limitations don’t apply if the applicable taxable income threshold is not met.  In addition, the QBID is phased out once taxable income reaches $415,000 (MFJ) or $207,500 (all others). 

Proposed Regulations

On August 8, the Treasury issued proposed regulations on the QBID.  Guidance was needed in many areas.  For example, questions existed with respect to the treatment of rents; aggregation of multiple business activities; the impact on trusts; and the definition of a trade or business, among other issues.  The proposed regulations answered some questions, left some unanswered and raised other questions. 

Rental activities.  One of the big issues for farmers and ranchers operating as sole proprietorships or as a pass-through entity is whether land rental income constitutes QBI.  The proposed regulations do confirm that real estate leasing activities can qualify for the QBID without regard to whether the lessor participates significantly in the activity.  That’s the case if the rental is between “commonly controlled” entities – defined as common ownership of 50 percent or more in each entity (e.g., between related parties).  This part of the proposed regulations is generous to taxpayers, and will be useful for many rental activities.  It’s also aided by the use of I.R.C. §162 for the definition of a “trade or business” as opposed to, for example, the passive loss rules of I.R.C. §469.  

But, the proposed regulations may also mean that the income a landlord receives from leasing land to an unrelated party (or parties) under a cash lease or non-material participation share lease may not qualify for the QBID.  If that latter situation is correct it could mean that the landlord must pay self-employment tax on the lease income associated with a lease to an unrelated party (or parties) to qualify the lease income for the QBID. 

The proposed regulations use an example or a rental of bare land that doesn’t require any cost on the landlord’s part.  This seems to imply that the rental of bare land to an unrelated third party qualifies as a trade or business.  There is another example in the proposed regulations that also seems to support this conclusion.  Apparently, this means that a landlord’s income from passive triple net leases (a lease where the lessee agrees to pay all real estate taxes, building insurance, and maintenance on the property in addition to any normal fees that are expected under the agreement) should qualify for the QBID.  But, existing caselaw is generally not friendly to triple net leases being a business under I.R.C. §162.  That means it may be crucial to be able to aggregate (group) those activities together. 

Unfortunately, the existing caselaw doesn’t discuss the issue of ownership when it is through separate entities and, on this point, the Preamble to the proposed regulations creates confusion.   The Preamble says that it's common for a taxpayer to conduct a trade or business through multiple entities for legal or other non-tax reasons, and also states that if the taxpayer meets the common ownership test that activity will be deemed to be a trade or business in accordance with I.R.C. §162.  But, the Preamble also states that "in most cases, a trade or business cannot be conducted through more than one entity.”  So, if a taxpayer has several rental activities that the taxpayer manages, does that mean that those separate rental activities can’t be aggregated (discussed below) unless each rental activity is a trade or business?  If the Treasury is going to be making the trade or business determination on an entity-by-entity basis, triple net leases might be problematic.  

Perhaps the final regulations will clarify whether rentals, regardless of the lease terms, will be treated as a trade or business (and can be aggregated).

Aggregation of activities.  Farmers and ranchers often utilize more than a single entity for tax as well as estate and business planning reasons.  The common technique is to place land into some form of non C corporate entity (or own it individually) and lease that land to the operating entity. For example, many large farming and ranching operations have been structured to have multiple limited liability companies (LLCs) with each LLC owning different tracts of land.  These operations typically have an S corporation or some other type of business entity that owns the operating assets that are used in the farming operation.  It appears that these entities can be grouped under the aggregation rule. For QBID purposes (specifically, for purposes of the wages and qualified property limitations) the proposed regulations allow an election to be made to aggregate (group) those separate entities.  Thus, the rental income can be combined with the income from the farming/ranching operation for purposes of the QBID computation.   Grouping allows wages and QP to also be aggregated and a single computation used for purposes of the QBID (eligibility and amount).  In addition, taxpayers can allocate W2 wages to the appropriate entity that employs the employee under common law.   

Note:  The wages and QP from any trade or business that produces net negative QBI is not taken into account and is not carried over to a later year.  The taxpayer has to offset the QBI attributable to each trade or business that produced net positive QBI. 

Without aggregation, the taxpayer must compute W-2 wages for each trade or business, even if there is more than one within a single corporation or partnership. That means a taxpayer must find a way to allocate a single payroll across different lines.

To be able to aggregate businesses, they must meet several requirements, but the primary one is that the same person or group of persons must either directly or indirectly own 50 percent or more of each trade or business.  For purposes of the 50 percent test, a family attribution rule applies that includes a spouse, children, grandchildren and parents of the taxpayer.  However, siblings, uncles, and aunts, etc., are not within the family attribution rule. To illustrate the rule, for example, the parents and a child could own a majority interest in three separate businesses and all three of those businesses could be aggregated.   But, the bar on siblings, etc., counting as "family" is a harsh rule for agricultural operations in particular.  Perhaps the final regulations will modify the definition of "family."

Note:  A ”group of persons” can consist of unrelated persons.  It is important that the “group” meet the 50 percent test.  It is immaterial that no person in the group meets the 50 percent test individually.    

Common ownership is not all that is necessary to be able to group separate trade or business activities.  The businesses to be grouped must provide goods or services that are the same or are customarily offered together; there must be significant centralized business elements; and the businesses must operate in coordination with or reliance upon one another.  Meeting this three-part test should not be problematic for most farming/ranching operations, but there is enough "wiggle room" in those definitions for the IRS to create potential issues.  

Once a taxpayer chooses to aggregate multiple businesses, the businesses must be aggregated for all subsequent tax years and must be consistently reported.  The only exception is if there is a change in the facts and circumstances such that the aggregation no longer qualifies under the rules.  So, disaggregation is generally not allowed, unless the facts and circumstances changes such that the aggregation rules no longer apply.  

Losses.  If a taxpayer’s business shows a loss for the tax year, the taxpayer cannot claim a QBID and the loss carries forward to the next tax year where it becomes a separate item of QBI.  If the taxpayer has multiple businesses (such as a multiple entity farming operation, for example), the proposed regulations require a loss from one entity (or multiple entities) to be netted against the income from the other entity (or entities).  If the taxpayer’s income is over the applicable threshold, the netting works in an interesting way.  For example, if a farmer shows positive income on Schedule F and a Schedule C loss, the Schedule C loss will reduce the Schedule F income.  The farmer’s QBID will be 20 percent of the resulting Schedule F income limited by the qualified wages, or qualified wages and the QP limitation.  Of course, the farmer may be able to aggregate the Schedule F and Schedule C businesses and would want to do so if it would result in a greater QBID. 

Note:  A QBI loss must be taken and allocated against the other QBI income even if the loss entity is not aggregated.  However, wages and QP are not aggregated. 

If the taxpayer had a carryover loss from a pre-2018 tax year, that loss is not taken into account when computing income that qualifies for the QBID.  This can be a big issue if a taxpayer had a passive loss in a prior year that is suspended.  That's another taxpayer unfriendly aspect of the proposed regulations.  

Trusts.  For trusts and their beneficiaries, the QBID can apply if the $157,500 threshold is not exceeded irrespective of whether the trust pays qualified wages or has QP.  But, that threshold appears to apply cumulatively to all trust income, including the trust income that is distributed  to trust beneficiaries.  In other words, the proposed regulations limit the effectiveness of utilizing trusts by including trust distributions in the trust’s taxable income for the year for purposes of the $157,500 limitation.  Prop. Treas. Reg. §1.199A-6(d)(3)(iii).  This is another taxpayer unfriendly aspect of the proposed regulations.  

Based on the Treasury's position, it will likely be more beneficial for parents, for example, for estate planning purposes, to create multiple trusts for their children rather than a single trust that names each of them as beneficiaries.  The separate trusts will be separately taxed.  The use of trusts can be of particular use when the parents can't utilize the QBID due to the income limitation (in other words, their income exceeds $415,000).  The trusts can be structured to qualify for the QBID, even though the parents would not be eligible for the QBID because of their high income.  However, the proposed regulations state that, “Trusts formed or funded with a significant purpose of receiving a deduction under I.R.C. §199A will not be respected for purposes of I.R.C. §199A.”  Again, that's a harsh, anti-taxpayer position that the proposed regulations take.

Under I.R.C. §643(f) the IRS can treat two or more trusts as a single trust if they are formed by substantially the same grantor and have substantially the same primary beneficiaries, and are formed for the principle purpose of avoiding income taxes.  Does the statement in the proposed regulations referenced above mean that the Treasury is ignoring the three-part test of the statute?  By itself, that would seem to be the case.  However, near the end of the proposed regulations, there is a statement reciting the three-part test of I.R.C. §643(f).  Prop. Treas. Reg. §1.643(f)-1).  Hopefully, that means that any trust that has a reasonable estate/business planning purpose will be respected for QBID purposes, and that multiple trusts will not be aggregated that satisfy I.R.C. §643(f).  Time will tell what the IRS position on this will be.

Unfortunately, the proposed regulations do not address how the QBID is to apply (or not apply) to charitable remainder trusts.

Miscellaneous

Here are a few other observations from the proposed regulations:

• Guaranteed payments in a partnership and reasonable compensation in an S corporation are not qualified wages for QBID purposes.
• Inherited property that the heir immediately places in service gets a fair market value as of date of death basis, but the proposed regulations don’t mention whether this resets the property’s depreciation period for QP purposes (as part of the 2.5 percent computation).  
• For purposes of the QP computation, the 2.5 percent is multiplied by the depreciated basis of the asset on the day it is transferred to an S corporation, for example, but it’s holding period starts on the day it was first used for the business before it is transferred.  
• A partnership’s I.R.C. §743(b) adjustment does not count for QP purposes. In other words, the adjustment does not add to UBIA.  Thus, the inheritance of a fully depreciated building does not result in having any QP against which the 2.5 percent computation can be applied.  That's a harsh rule from a taxpayer's standpoint.  
• R.C. §1231 gains are not QBI. But, any portion of an I.R.C. §1231 gain that is taxed as ordinary income will qualify as QBI.
• Preferred allocations of partnership income will not qualify as QBI to the extent the allocation is for services.  This forecloses a planning opportunity that could have been achieved by modifying a partnership agreement to provide for such allocations.

Conclusion

The proposed regulations are now subject to a 45-day comment period with a public hearing to occur in mid-October.  The proposed rules do not have the force of law, but they can be relied on as guidance until final regulations are issued.  From a practice standpoint, rely on the statutory language when it is more favorable to a client than the position the Treasury has taken in the proposed regulations.

Numerous questions remain and will need to be clarified in the final regulations.  The Treasury will be hearing from the tax section of the American Bar Association, the American Institute of CPAs, other tax professionals and other interested parties.  Hopefully, some of the taxpayer unfavorable positions taken in the proposed regulations can be softened a bit in the final regulations.  In addition, it would be nice to get some guidance on how the rules will apply to cooperatives and their patrons.  

Also, this post did not exhaust all of the issues addressed in the proposed regulations, just the one that are most likely to apply to farming and ranching businesses.  For example, a separate dimension of the proposed regulations deals with “specialized service businesses.”   That was not addressed.