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July 10, 2025

Key Provisions of the “No Tax on Overtime” Rule:

  1. Effective Date: The new rule is retroactive to January 1, 2025, and is set to expire on December 31, 2028.
  2. Nature of the Benefit: This is a federal income tax deduction, not a complete exemption from all taxes on overtime. It allows eligible employees to deduct a portion of their qualified overtime earnings from their federal taxable income when they file their annual tax return.
  3. Eligibility:
    • Applies to non-exempt employees who receive overtime compensation as required by Section 7 of the Fair Labor Standards Act (FLSA).
    • There are income limitations: The deduction begins to phase out for individuals with a modified adjusted gross income (MAGI) exceeding $150,000 (or $300,000 for those filing jointly). Highly compensated employees are generally not eligible.
  4. Deduction Limit: Eligible employees can deduct up to $12,500 of qualified overtime compensation per year (or $25,000 for those filing jointly). This is an “above-the-line” deduction, meaning it can be claimed even if the employee does not itemize deductions.
  5. What Qualifies: Only overtime compensation that is required under the FLSA and is in excess of the regular rate qualifies for this deduction. Overtime premiums paid under state laws or collective bargaining agreements that are not FLSA-required generally do not qualify.

How Employers Treat Overtime for Withholding:

This is the most critical aspect for employers. Despite the new deduction for employees, employers’ immediate withholding obligations remain largely unchanged for now.

  1. Continued Withholding of Federal Income Tax: Employers are still required to withhold federal income tax from all overtime wages earned by employees. The employee’s deduction occurs when they file their personal income tax return (Form 1040), not at the time of each paycheck.
  2. Continued Withholding of FICA Taxes: Overtime wages remain fully subject to Social Security and Medicare (FICA) taxes. Employers must continue to withhold and remit these taxes as normal.
  3. State and Local Taxes: The “No Tax on Overtime” provision applies only to federal income tax. State and local income tax treatment of overtime is not affected by this federal law and will vary based on individual state and local regulations.
  4. No Immediate Changes to Payroll Systems/W-4s (for 2025):
    • For the 2025 tax year, employers are not required to immediately change how they calculate or withhold federal income tax on qualifying overtime compensation.
    • Employers may continue to use current IRS withholding tables.
    • No changes to employee W-4 forms are required solely due to this new deduction.
    • The IRS is expected to issue updated withholding guidance and forms, likely by late 2025, with mandatory implementation starting in 2026.
  5. New Reporting Requirements (Form W-2):
    • Employers must report the total amount of “qualified overtime compensation” as a separate line item on employees’ Forms W-2 for year-end reporting.
    • For the 2025 tax year, the Act allows employers to approximate this amount using any “reasonable method” that will be specified by the Treasury Secretary (awaiting further guidance).
  6. Employer Preparation:
    • Accurate Tracking: Ensure robust and clear tracking of regular hours, overtime hours, and the specific portion of overtime that qualifies as “excess of the regular rate” under FLSA.
    • Payroll System Review: Coordinate with payroll providers and software vendors to prepare for necessary system updates to comply with the new W-2 reporting requirements.
    • Employee Communication: Be prepared to answer employee questions about this new deduction, clarifying that while they can claim the deduction on their tax return, employers must still withhold taxes from their paychecks as usual.
    • Monitor IRS Guidance: Stay informed about forthcoming guidance from the IRS and Treasury Department regarding updated withholding tables and specific methods for reporting qualified overtime for 2025 and beyond.

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July 7, 2025

Below are details of many of the tax provisions in the One Big Beautiful Bill Act, which was signed into law Friday by President Donald Trump.

The House approved the measure Thursday in a 218-214 vote, after the Senate approved it Tuesday by a 51-50 vote, with Vice President JD Vance casting the tie-breaking vote.

The bill extends many of the expiring provisions from the Tax Cuts and Jobs Act (TCJA), P.L. 115-97. It also addresses other tax priorities of the Trump administration, including providing deductions to eliminate income taxes on certain tips and overtime pay.

The bill also revamps some of the TCJA’s provisions on the taxation of corporations’ foreign income and terminates a large number of clean energy tax incentives.

In a statement, AICPA President and CEO Mark Koziel, CPA, CGMA, called the bill “a win for millions of businesses, taxpayers, and tax practitioners across the country.”

Additionally, Koziel said in the statement: “No bill is perfect — however, there are many beneficial tax provisions in this bill that I believe support the business community and will help grow our economy. The tax provisions in this bill will help facilitate tax planning earlier in the year, which can help reduce the anxiety of the unknown for many taxpayers.”

The AICPA has published charts comparing tax and personal financial planning provisions of the bill with current law (free site registration required).

Provisions for individuals

Tax rates: The bill generally makes the tax rates enacted in 2017 in the TCJA permanent. The bill adds an additional year of inflation adjustment for determining the dollar amounts at which any rate bracket higher than 12% ends and at which any rate bracket higher than 22% begins.

Standard deduction: The bill makes the TCJA’s increased standard deduction amounts permanent. For tax years beginning after 2024, the standard deduction increases to $15,750 for single filers, $23,625 for heads of household, and $31,500 for married individuals filing jointly. The standard deduction will be adjusted for inflation after that. These changes have been made retroactive to include 2025.

SALT cap: The bill temporarily increases the limit on the federal deduction for state and local taxes (the SALT cap) to $40,000 (from the current $10,000) and adjusts it for inflation. In 2026, the cap will be $40,400, and then will increase by 1% annually, through 2029. Starting in 2030, it will revert to the current $10,000.

The amount of the deduction available to a taxpayer phases down for taxpayers with modified adjusted gross income (MAGI) over $500,000 (in 2025). The MAGI threshold will be adjusted for inflation through 2029. The phasedown will reduce the taxpayer’s SALT deduction by 30% of the amount the taxpayer’s MAGI exceeded the threshold, but the limit on a taxpayer’s SALT deduction could never go below $10,000.

The version of the bill that passed the House in May also increased the SALT cap to $40,000, but included provisions to limit taxpayers’ attempt to circumvent the cap, including not allowing specified service trades or businesses (SSTBs) to deduct state and local income taxes. This provision would limit the usefulness of state passthrough entity taxes (PTETs) in avoiding the SALT cap. The Senate Finance Committee’s version of the bill took a different tack and would have limited all passthrough entity owners’ PTET SALT deduction to the unused portion of their SALT deduction plus the greater of $40,000 of their allocation of the PTET or 50% of their allocation of the PTET.

The adopted version of the bill merely increases the SALT cap and does not attempt to limit or address the various workarounds that taxpayers are currently using to avoid the SALT cap. The AICPA had advocated against limiting the use of PTETs.

In the AICPA statement, Koziel said: “We are thankful to the members of Congress who supported millions of businesses’ ability to retain pass-through entity tax SALT deduction and our partners throughout the state CPA societies and other professional service businesses for their diligent advocacy on this important issue.” (For more on this, see “Senate Budget Bill Would Preserve PTET SALT Deduction.”)

Personal exemptions and senior deduction: The Senate bill permanently sets the deduction for personal exemptions at zero. However, it provides a temporary $6,000 deduction under Sec. 151 for individual taxpayers who are age 65 or older. This senior deduction begins to phase out when a taxpayer’s MAGI exceeds $75,000 ($150,000 in the case of a joint return). It will be in effect for the years 2025 through 2028.

Child tax credit: The bill increases the amount of the nonrefundable child tax credit to $2,200 per child beginning in 2025 and indexes the credit amount for inflation. The bill also makes permanent the $1,400 refundable child tax credit, adjusted for inflation. It in addition makes permanent the increased income phaseout threshold amounts of $200,000 ($400,000 in the case of a joint return), as well as the $500 nonrefundable credit for each dependent of the taxpayer other than a qualifying child.

QBI deduction: The bill makes the Sec. 199A qualified business income (QBI) deduction permanent and keeps the deduction rate at 20% (the bill passed by the House would have raised it to 23%). The bill expands the Sec. 199A deduction limit phase-in range for SSTBs and other entities subject to the wage and investment limitation by increasing the $50,000 amount for non-joint returns to $75,000 and the $100,000 amount for joint returns to $150,000.

The bill also introduces an inflation-adjusted minimum deduction of $400 for taxpayers who have at least $1,000 of QBI from one or more active trades or businesses in which they materially participate.

Estate and gift tax exemption amounts: The bill amends Sec. 2010 to permanently increase the estate tax exemption and lifetime gift tax exemption amounts to $15 million for single filers ($30 million for married filing jointly) in 2026 and index the exemption amount for inflation after that.

Alternative minimum tax exemption: The bill permanently extends the TCJA’s increased individual alternative minimum tax (AMT) exemption amounts and reverts the exemption phaseout thresholds to their 2018 levels of $500,000 ($1 million in the case of a joint return), indexed for inflation. However, in a change from the Senate Finance Committee’s version of the bill, the bill increases the phaseout of the exemption amount from 25% to 50% of the amount by which the taxpayer’s alternative minimum taxable income exceeds the threshold amount.

Mortgage interest deduction: The bill permanently extends the TCJA’s provision limiting the Sec. 163 qualified residence interest deduction to the first $750,000 in home mortgage acquisition debt. It also makes permanent the exclusion of interest on home-equity indebtedness from the definition of qualified residence interest. The bill also treats certain mortgage insurance premiums on acquisition indebtedness as qualified residence interest.

Casualty loss deductions: Under the bill, the TCJA’s provision limiting the itemized deduction for personal casualty losses to losses resulting from federally declared disasters becomes permanent, but the bill expands the provision to include certain state-declared disasters.

letter to four Senate leaders dated June 28 reiterated the AICPA’s appreciation for multiple provisions in the bill and noted the AICPA’s “continued concern” regarding the permanency of the TCJA limitation on such deductions.

“We hope to continue to work with you to find improvements on this issue in any future tax legislation,” the letter said. “That being said, on balance, the legislation that the Senate will consider makes significant improvements to the OBBB that truly promote business growth. With that in mind, we express our strong support for the Senate tax provisions and urge their inclusion in any final version of the OBBB that becomes law.”

Miscellaneous itemized deductions: The bill makes permanent the TCJA’s suspension of the Sec. 67(g) deduction for miscellaneous itemized deductions but removes unreimbursed employee expenses for eligible educators from the list of miscellaneous itemized deductions.

Itemized deductions limitation: The bill permanently removes the Sec. 68 overall limitation on itemized deductions (known as the Pease limitation) and replaces it with a new overall limitation on the tax benefit of itemized deductions. The amount of itemized deductions otherwise allowable would be reduced by 2/37 of the lesser of (1) the amount of the itemized deductions or (2) the amount of the taxpayer’s taxable income that exceeds the start of the 37% tax rate bracket.

Bicycle commuting reimbursements: The bill permanently excludes qualified bicycle commuting reimbursements from the list of qualified transportation fringe and other commuting benefits, making them taxable to employees.

Moving expense deduction: The bill permanently eliminates the Sec. 217 deduction for moving expenses, except for members of the armed forces and certain members of the intelligence community.

Wagering losses: The bill amends Sec. 165(d) to clarify that the term “losses from wagering transactions” includes any deduction otherwise allowable under Chapter 1 of the Code incurred in carrying on any wagering transactions. The bill limits the term “losses from wagering transactions” to 90% of the amount of those losses, and losses will be deductible only to the extent of the taxpayer’s gains from wagering transactions during the tax year.

ABLE accounts: The bill makes various changes to Sec. 529A ABLE accounts, including making permanent the TJCA’s increased limitation on contributions to ABLE accounts. The bill also makes permanent the inclusion of ABLE account contributions as eligible Sec. 25B saver’s credit contributions, but after 2026 only ABLE account contributions will be eligible saver’s credit contributions. The credit amount increases from $2,000 to $2,100. (This increase was not included in the Senate Finance Committee’s version of the bill.)

Student loan debt discharge: The bill makes permanent and makes some adjustments to the Sec. 108(f)(5) provision excluding from gross income student loans that are discharged on account of death or disability. The bill also requires the inclusion of the taxpayer’s Social Security number (SSN) on the relevant income tax return when a student loan is discharged.

No tax on tips: The bill provides a temporary deduction of up to $25,000 for qualified tips received by an individual in an occupation that customarily and regularly receives tips. The deduction will be allowed for both employees receiving a Form W-2, Wage and Tax Statement, and independent contractors who receive Form 1099-K, Payment Card and Third Party Network Transactions, or Form 1099-NEC, Nonemployee Compensation, or who report tips on Form 4317, Social Security and Medicare Tax on Unreported Tip Income. The deduction would be an above-the-line deduction and, therefore, available for taxpayers who claim the standard deduction or itemize deductions. The deduction begins to phase out when the taxpayer’s MAGI exceeds $150,000 ($300,000 in the case of a joint return). This temporary deduction will be available for tax years 2025 through 2028. A transition rule will allow employers required to furnish statements enumerating an individual’s tips for tax year 2025 to use “any reasonable method” to estimate designated tip amounts.

The bill also extends the Sec. 45B credit for a portion of employer Social Security taxes paid with respect to employee cash tips to certain beauty service businesses.

No tax on overtime: The bill provides a temporary above-the-line deduction of up to $12,500 ($25,000 in the case of a joint return) for qualified overtime compensation received by an individual during a given tax year. The deduction begins to phase out when the taxpayer’s MAGI exceeds $150,000 ($300,000 in the case of a joint return). The bill defines qualified overtime compensation as overtime compensation paid to an individual required under Section 7 of the Fair Labor Standards Act of 1938 that is in excess of the regular rate (as used in that section) at which the individual is employed. Overtime deductions would only be allowed for qualified overtime compensation if the total amount of qualified overtime compensation is reported separately on Form W-2 (or Form 1099, if the worker is not an employee). This temporary deduction will be available for tax years 2025 through 2028.

Car loan interest: For the years 2025 through 2028, the bill excludes qualified passenger vehicle loan interest from the definition of personal interest in Sec. 163(h). Qualified passenger vehicle loan interest is defined as interest paid or accrued during tax year on indebtedness incurred by the taxpayer after Dec. 31, 2024, for the purchase of, and that is secured by a first lien on, an applicable passenger vehicle for personal use. Among other restrictions, applicable passenger vehicles must have had their final assembly in the United States.

The exclusion is capped at $10,000 per year and will phase out for taxpayers with MAGI in excess of $100,000 ($200,000 for married taxpayers filing jointly).

Adoption credit: The bill makes a portion (up to $5,000) of the Sec. 23 adoption credit refundable. That amount will be adjusted for inflation.

Dependent care assistance programs: The maximum annual amount excludable from income under a Sec. 129 dependent care assistance program increases from $5,000 to $7,500 under the bill.

Child and dependent care credit: The bill permanently increases the amount of the child and dependent care tax credit from 35% to 50% of qualifying expenses. The credit rate phases down for taxpayers with adjusted gross income (AGI) over $15,000. It will be reduced by 1 percentage point (but not below 35%) for each $2,000 that the taxpayer’s AGI exceeds $15,000. It will then be further reduced by (but not below 20%) 1 percentage point for each $2,000 ($4,000 for joint returns) that their AGI exceeds $75,000 ($150,000 for joint returns).

Trump accounts: The Senate version of the bill takes the House bill’s concept of tax-free savings accounts for minors, called Trump accounts, and revises it to make them a form of individual retirement account (IRA) under Sec. 408(a). Under the bill, Trump accounts will be IRAs (but not Roth IRAs) for the exclusive benefit of individuals under 18. Contributions can only be made in calendar years before the beneficiary turns 18 and distributions can only be made starting in the calendar year the beneficiary turns 18. Trump accounts will have to be designated as such when they are set up, and the bill does not allow Trump account contributions until 12 months after the date of enactment of the bill.

Under the bill, Treasury can set up Trump accounts for individuals that it identifies as eligible and for which no Trump account has already been created.

Eligible investments in Trump accounts would generally be mutual funds and indexed ETFs. Contributions (other than qualified rollover contributions) will be capped at $5,000 a year (adjusted for inflation after 2027). State, local, and tribal governments and charitable organizations could make “general funding contributions,” which would be contributions made to a specified qualified class of Trump account beneficiaries. Qualified classes include beneficiaries under the age of 18, and the general funding contribution can specify geographical areas or specific birth years of beneficiaries whose accounts will receive the contributions.

The bill creates a new Sec. 128 that allows for employer contributions to Trump accounts. These contributions will not be included in the employee’s income.

A new Sec. 6434 creates a Trump accounts contribution pilot program that provides a $1,000 tax credit for opening a Trump account for a child born between Jan. 1, 2025, and Dec. 31, 2028. The bill appropriates $410 million, to remain available through Sept. 30, 2034, to fund Trump accounts.

Credit for contributions to scholarship-granting organizations: The bill enacts a new Sec. 25F that provides a credit of the greater of $5,000 or 10% of the taxpayer’s AGI for charitable contributions to scholarship-granting organizations. The credit comes with a $4 billion annual cap (starting in 2027), and the credit will be allocated on a first-come, first-served basis, up to that cap.

The provision also creates a Sec. 139K, which excludes from income scholarships for the qualified secondary or elementary education expenses of eligible students.

Sec. 529 plans: The bill allows tax-exempt distributions from Sec. 529 savings plans to be used for additional educational expenses in connection with enrollment or attendance at an elementary or secondary school. The bill also allows tax-exempt distributions from 529 savings plans to be used for additional qualified higher education expenses, including “qualified postsecondary credentialing expenses.”

Charitable contribution deduction: The bill creates a charitable contribution deduction for taxpayers who do not elect to itemize, allowing nonitemizers to claim a deduction of up to $1,000 for single filers or $2,000 for married taxpayers filing jointly for certain charitable contributions. For itemizers, the bill imposes a 0.5% floor on the charitable contribution deduction: The amount of an individual’s charitable contributions for a tax year is reduced by 0.5% of the taxpayer’s contribution base for the tax year. For corporations, the floor will be 1% of the corporation’s taxable income, and the charitable contribution deduction cannot exceed the current 10%-of-taxable-income limit.

Business provisions

Bonus depreciation: The bill permanently extends the Sec. 168 additional first-year (bonus) depreciation deduction. The allowance is increased to 100% for property acquired and placed in service on or after Jan. 19, 2025, as well as for specified plants planted or grafted on or after Jan. 19, 2025.

Sec. 179 expensing: The bill increases the maximum amount a taxpayer may expense under Sec. 179 to $2.5 million, reduced by the amount by which the cost of qualifying property exceeds $4 million.

Research-and-development expenses: The bill allows taxpayers to immediately deduct domestic research or experimental expenditures paid or incurred in tax years beginning after Dec. 31, 2024. However, research or experimental expenditures attributable to research that is conducted outside the United States will continue to be required to be capitalized and amortized over 15 years under Sec. 174.

Small business taxpayers with average annual gross receipts of $31 million or less will generally be permitted to apply this change retroactively to tax years beginning after Dec. 31, 2021. And all taxpayers that made domestic research or experimental expenditures after Dec. 31, 2021, and before Jan. 1, 2025, will be permitted to elect to accelerate the remaining deductions for those expenditures over a one- or two-year period.

Limitation on business interest: The bill reinstates the EBITDA limitation under Sec. 163(j) for tax years beginning after Dec. 31, 2024. Therefore, for purposes of the Sec. 163(j) interest deduction limitation for these years, adjusted taxable income would be computed without regard to the deduction for depreciation, amortization, or depletion. The bill would also modify the definition of “motor vehicle” to allow interest on floor plan financing for certain trailers and campers to be deductible.

Paid family and medical leave credit: Under the bill, Sec. 45S is amended to make the employer credit for paid family and medical leave permanent.

Special depreciation allowance for qualified production property: The bill allows an additional first-year depreciation deduction equal to 100% of the adjusted basis of “qualified production property.” Qualified production property is generally nonresidential real property used in manufacturing.

Advanced manufacturing investment credit: Under the bill, the advanced manufacturing investment credit rate increases from 25% to 35%, effective for property placed in service after Dec. 31, 2025. (The Senate Finance Committee version of the bill had proposed increasing the rate to 30%.)

Spaceports: The bill amends Sec. 142(a)(1) to ensure spaceports are treated like airports under the exempt-facility bond rules. A spaceport is defined as a facility close to a launch or reentry site that is used to manufacture, assemble, or repair spacecraft or space cargo or is used for flight control operations, to provide launch or reentry services, or to transfer crew, spaceflight participants, or space cargo to or from a spacecraft. This is a new provision that was not in the Senate Finance Committee’s version of the bill.

Employer-provided child care credit: The bill increases the amount of qualified child care expenses taken into account for purposes of the Sec. 45F employer-provided child care credit from 25% to 40%. The maximum amount of the credit increases from $150,000 to $500,000 ($600,000 for eligible small businesses) and will be adjusted for inflation.

Opportunity zones: The bill makes opportunity zones permanent but with several changes, including narrowing the definition of “low-income community.” The changes would generally take effect Jan. 1, 2027.

New markets tax credit: The bill makes the Sec. 45D new markets tax credit permanent.

Percentage-of-completion method: The bill provides an exception to the Sec. 460(e) requirement to use the percentage-of-completion accounting method for certain residential construction contracts entered into after the date of the bill’s enactment.

Qualified small business stock: The bill increases the Sec. 1202 exclusion for gain from qualified small business stock. For qualified small business stock acquired after the date of enactment of the bill and held for at least four years, the percentage of gain excluded from gross income will rise from 50% to 75%. If it is held for five years or more, the exclusion percentage will go up to 100%.

Excess business losses: The bill makes Sec. 461(l)(1) limitation on excess business losses of noncorporate taxpayers permanent. It was scheduled to expire after 2028. Language in the Senate Finance Committee version of the bill would have treated carried over excess business losses as excess business losses, and therefore subject to the Sec. 461(l) limitation, rather than as net operating losses (NOLs), which are not subject to Sec. 461(l). That language was dropped from the final bill.

Clean energy incentives

The bill terminates a large number of clean energy tax incentives:

    • Sec. 25E previously owned clean vehicle credit (terminates after Sept. 30, 2025);
    • Sec. 30D clean vehicle credit (terminates for vehicles acquired after Sept. 30, 2025);
    • Sec. 45W qualified commercial clean vehicle credit (terminates after Sept. 30, 2025);
    • Sec. 30C alternative fuel vehicle refueling credit (terminates after June 30, 2026);
    • Sec. 25C energy-efficient home improvement credit (terminates after Dec. 31, 2025);
    • Sec. 25D residential clean energy credit (terminates for expenditures made after Dec. 31, 2025);
    • Sec. 179D energy-efficient commercial buildings deduction (terminates for property the construction of which begins after June 30, 2026);
    • Sec. 45L new energy-efficient home credit (terminates after June 30, 2026);
    • Sec. 45V clean hydrogen production credit (terminates after Jan. 1, 2028); and
    • Sec. 6426(k) sustainable aviation fuel credit (terminates after Sept. 30, 2025).

The Sec. 168(e)(3)(B)(vi) provision allowing cost recovery for certain energy property and qualified clean energy facilities, property, and technology will be terminated after Dec. 31, 2025, for energy property and after the date of enactment for qualified clean energy facilities, property, and technology.

The bill places restrictions on claiming the Sec. 45U nuclear power production credit for foreign entities and for facilities that use imported nuclear fuel.

The Sec. 45Y clean electricity production credit is terminated for wind and solar facilities placed in service after Dec. 31, 2027. No credit will be allowed to facilities that are owned or controlled by certain foreign entities. The Sec. 48E clean electricity investment credit is also terminated for wind and solar facilities placed in service after Dec. 31, 2027. Restrictions are also placed around claims by facilities owned or controlled by certain foreign entities.

The Sec. 45Z clean fuel production credit is extended through 2029, and prohibitions are placed on the use of foreign feedstocks.

International provisions

Foreign tax credit limitation: The Senate Finance Committee version of the bill would have limited the deductions of a U.S. shareholder allocable to income in the global intangible low-tax income (GILTI) category when determining its foreign tax credit limitation. It would also have modified the determination of deemed paid credit for taxes properly attributable to tested income and change the rules for sourcing certain income from the sale of inventory produced in the United States. The adopted bill revises that provision and treats those deductions as allocable to “net CFC tested income” (which is what the bill turns GILTI into, see below).

Deemed paid credit: The bill amends Sec. 960(d)(1) to increase the deemed paid credit for Subpart F inclusions from 80% to 90%.

GILTI and FDII: The bill decreases the Sec. 250 deduction percentage for tax years beginning after Dec. 31, 2025, to 33.34% for foreign-derived intangible income (FDII) and 40% for GILTI, resulting in an effective tax rate of 14% for both FDII and GILTI. The bill also proposes changing the definition of deduction-eligible income for purposes of determining FDII. The bill also eliminates the use of a corporation’s deemed tangible income return for determining FDII and the use of net deemed tangible income return in determining GILTI. These changes result in the elimination of the terms FDII and GILTI, which will be renamed “foreign-derived deduction eligible income” and “net CFC tested income,” respectively.

BEAT: The bill increases the base-erosion and anti-abuse tax (BEAT) rate from 10% to 10.5% (the Senate Finance Committee version would have increased it to 14%). Other BEAT changes that were included in the Senate Finance Committee version have been eliminated.

Business interest limitation: The bill provides that the Sec. 163(j) business interest limitation will be calculated prior to the application of any interest capitalization provision.

Remedies against unfair foreign taxes: The provision of the Senate Finance Committee version of the bill that would have enacted a new Sec. 899 to impose increased rates of tax (up to 15%) on certain affected taxpayers connected to countries that are deemed to impose unfair foreign taxes was dropped from the final bill.

Administrative provisions and excise taxes

Third-party network transaction reporting threshold: The bill reverts to the prior rule for Form 1099-K reporting, under which a third-party settlement organization is required to report, unless the aggregate value of third-party network transactions with respect to a participating payee for the year exceeds $20,000 and the aggregate number of such transactions with respect to a participating payee exceeds 200. The threshold had been phasing down and was scheduled to be $600 starting next year.

Form 1099 reporting threshold: The bill increases the information-reporting threshold for certain payments to persons engaged in a trade or business and payments of remuneration for services to $2,000 in a calendar year (from $600), with the threshold amount to be indexed annually for inflation in calendar years after 2026.

Firearms transfer tax: The bill reduces the Sec. 5811 transfer tax on certain firearms.

Farmland sales: The bill adds a new Sec. 1062 that allows income tax resulting from the sale of farmland to a qualified farmer to be paid in four annual installments. This is a new provision.

Litigation financing: The bill as originally considered would have imposed a 31.8% tax on “qualified litigation proceeds” received by a “covered party,” as defined in the bill. That provision was dropped from the final bill.

Remittance transfer tax: The bill imposes a 1% tax on “remittance transfers,” imposed on the sender. A remittance transfer for these purposes is a transfer of cash, a money order, a cashier’s check, or similar physical instrument. It does not include funds withdrawn from an account held with a financial institution or charged to a credit or debit card.

Under Section 919(g) of the Electronic Fund Transfer Act, a remittance transfer is an electronic transfer of funds requested by a sender to a designated recipient that is initiated by a remittance transfer provider. A remittance transfer provider is any person or financial institution that provides remittance transfers for consumers in the normal course of its business, whether or not the consumer holds an account with the financial institution.

The Senate Finance Committee version of the bill would have imposed a 3.5% tax on such transfers.

Employee retention credit enforcement: The bill requires employee retention credit (ERC) promoters to comply with due diligence requirements with respect to a taxpayer’s eligibility for (or the amount of) an ERC. The bill applies a $1,000 penalty for each failure to comply. It also extends the penalty for excessive refund claims to employment tax refund claims. It also prevents the IRS from issuing any additional unpaid claims under Sec. 3134, unless a claim for a credit or refund was filed on or before Jan. 31, 2024.

SSN requirements: The bill imposes an SSN requirement for claiming an American opportunity or lifetime learning credit under Sec. 25A.

EITC program: The Senate Finance Committee version of the bill proposed creating an earned income tax credit (EITC) certification program to allow the IRS to detect and manage duplicative EITC claims. That proposal was dropped from the bill.

Penalties for unauthorized disclosure of taxpayer information: A proposal in the Senate Finance Committee version of the bill to increase the Sec. 7213 penalties for unauthorized disclosure of taxpayer information was also removed.

— Alistair M. Nevius, J.D., is a freelance writer in North Carolina. To comment on this article or to suggest an idea for another article, contact Neil Amato at Neil.Amato@aicpa-cima.com.


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June 30, 2025

Texas will give participating families about $10,000 to pay for their kids’ private schooling. Other details about the program, set to launch in 2026, are unclear.

The law will go into effect on Sept. 1, with the program expected to launch in late 2026.

Families can receive about $10,000 to send their children to private school on taxpayers’ dime

Texas will spend $1 billion on vouchers in the first two years, but costs could skyrocket

Most families can participate, including some of the wealthiest Texans

The program launches next year, but other specifics are still unclear

Participating students won’t have to take the STAAR test

Contributor

Jaden Edison is the public education reporter for The Texas Tribune. He previously reported on justice for The Connecticut Mirror and interned at Poynter. He holds master’s and bachelor’s degrees from Columbia University and Texas State University, respectively. While at Texas State, he was editor-in-chief of The University Star.

You can reach him at jaden.edison@texastribune.org or on X @edisonjaden.


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May 20, 2022
EXECUTIVE
SUMMARY
  • Besides providing a tax-favorable option for taxpayers to pay out-of-pocket medical expenses, HSAs can be used as a flexible tax-favored investment vehicle.
  • Annual contributions to an HSA are limited in 2022 to $3,650 for an individual self-only plan or $7,300 for a family plan ($3,600 and $7,200, respectively, in 2021). An additional $1,000 is allowed for taxpayers who reach age 55 by the end of the tax year. HSA contributions within these limits are tax-deductible.
  • Withdrawals from HSAs are tax-free to the extent that they are used to pay qualified medical expenses, including expenses for over-the-counter drugs and menstrual care products. There is no time limit on a taxpayer requesting reimbursement from an HSA for a medical expense he or she paid with funds outside the HSA.
  • Because there is no reimbursement time limit, a taxpayer can defer reimbursement from the HSA for medical expenses paid until the time he or she chooses. By deferring reimbursement of medical expenses, contributions to an HSA can grow tax-free, similar to contributions to an IRA or Roth IRA.
  • Withdrawals of the amounts a taxpayer contributes to the HSA plus investment earnings, up to the amount of accumulated reimbursable medical expenses, can be taken tax-free when the taxpayer chooses to request reimbursement.

This article shows how clients can benefit from viewing a health savings account (HSA) as a flexible tax-favored investment strategy. HSAs allow taxpayers of any income level to deduct contributions immediately and withdraw the contributions, with accumulated investment earnings, free of tax at any age. That is, the “health” moniker can be a misnomer by disguising a key benefit of an HSA: An HSA can be a flexible tax-favored investment vehicle.

Compared with more aptly named individual retirement accounts (IRAs), an HSA savings strategy (1) allows tax-deductible contributions like a traditional IRA but without its limitations on working alongside a Sec. 401(k); (2) allows tax-free withdrawals like a Roth IRA and without its income-based contribution limits; and (3) avoids waiting until retirement age for penalty-free withdrawals of earnings, as required by both traditional and Roth IRAs. This short article explains that U.S. tax law currently permits this tax-favored investment strategy by effectively combining the tax benefits of an HSA with an investment strategy.1

Sec. 223 allows a taxpayer covered by a qualified family high-deductible health plan (HDHP) to make deductible contributions to an HSA trust account of up to $7,300 in 2022 or $7,200 in 2021 (for taxpayers with a qualified self-only HDHP, $3,650 in 2022 and $3,600 in 2021). An additional $1,000 deduction is allowed for taxpayers who are at least 55 years old at any time during the tax year. Employer contributions made to an HSA are excludable from the employee’s gross income (Secs. 106(d) and 125). The employer contributions to the HSA also reduce the annual limits on the employee’s deductible contributions. An HSA remains with a taxpayer after he or she leaves an employer or the workforce entirely, which adds portability to the benefits of an HSA.

Withdrawals from an HSA to cover the costs of qualified medical expenses as defined in Sec. 223(d)(2) are tax-free, including withdrawals of investment earnings on the HSA funds. Employees can direct the HSA administrator to pay for qualified medical expenses directly from the account. Indeed, some plans provide HSA participants with debit cards to pay these expenses directly, which can help the taxpayer meet the substantiation requirements. Regardless of how medical costs are withdrawn, the taxpayer is responsible for documenting that the funds are used exclusively to pay for qualified medical expenses, that the expense has not previously been reimbursed or paid for by another source, and that the medical expense is not also included among itemized deductions.

An alternate approach — the strategy recommended here — is for the taxpayer to pay the medical bills personally and request reimbursement of these costs from the HSA only when he or she needs the funds. Of course, a taxpayer should carefully document each medical expenditure and carefully preserve this documentation. However, there is no time requirement for requesting reimbursement from the HSA. Therefore, a valid tax strategy is to pay medical costs from non-HSA funds, retain the reimbursement documentation, and wait until the funds are needed to obtain reimbursement for the costs. Note, however, this strategy is only useful to the extent that the taxpayer can afford to pay the medical expenses from sources outside the HSA. This approach is valid because no time limit prescribes when a qualified medical expense claim must be filed.

The ability to use an HSA as a tax-favored investment vehicle depends on two things. First, when a medical bill falls due, the taxpayer must be capable of paying it with funds outside the HSA. The investment benefit decreases as the taxpayer draws on the HSA funds. Second, taking tax-free withdrawals depends in part on the taxpayer’s incurring medical costs that can be reimbursed from the HSA upon submission of receipts. Since some taxpayers and their families are relatively healthy, their health decreases the flexibility of the HSA as a tax-favored investment vehicle from which funds can be drawn upon quickly and without penalty. However, even healthy taxpayers face regular health and dental expenses, which include unprescribed over-the-counter medicine and menstrual care products, that qualify for reimbursement. To the extent that a taxpayer pays these costs out of pocket and can substantiate they were paid, these paid but unreimbursed costs allow the taxpayer to later draw on his or her tax-favored investment as needed. One way to view paying qualified medical expenses with non-HSA funds is that these payments become highly flexible, heavily tax-favored investments. Of course, if non-HSA savings or after-tax investments are not available to pay medical costs, HSA funds can be used. But using HSA funds to pay qualified medical expenses should be a last resort, not the default strategy.

Examples of applying the strategy

Example 1: M (age 25) and J (age 24) married in 2021. M works for a large public accounting firm, and J freelances as a graphic design artist. Starting in 2021, each year, M’s employer pays the cost of family HDHP coverage and contributes $2,000 to M’s HSA. In addition, M and J annually contribute $1,000 to the HSA and claim a deduction for this amount on their joint tax return; this $1,000 pretax contribution is considerably smaller than would be required for traditional full-coverage health insurance. The net annual cost is $700 after considering their 30% marginal tax rate. M and J are in good physical condition, but annual vision, dental, and menstrual care; wellness checks; and over-the-counter medicine costs total $2,500 per year, which M and J carefully document and pay out of pocket without requesting reimbursement from the HSA. The HSA funds are invested and earn 8% annually.

The couple buy a house in 2027 after having a baby in 2025.The couple planned and paid for the $6,000 cost of having the baby out of pocket, including prenatal care and two hospital nights.2 By 2027, the balance in the HSA has grown to $27,839, which includes $6,839 of tax-free income. In 2027, the couple submit reimbursable receipts that total $23,500, the proceeds of which finance a portion of the down payment on the house. 3

Example 2: B (age 51) and G (age 47) are empty nesters at the beginning of their high-income years and begin considering the heavier medical costs that are likely to come with getting older. B is a successful self-employed consultant who earns approximately $300,000 annually, an amount that trends upward a bit each year. Starting in 2021, they switch to an HDHP and begin contributing (and deducting) the maximum per year, which is $7,200 and is assumed to increase $100 per year; they add $1,000 per year to their contributions when B turns 55 in 2025. Annual reimbursable medical costs from 2021 to 2035 begin at $3,500 and increase by $200 per year; these costs are paid out of pocket, but the receipts are carefully maintained. The HSA funds are invested and earn 8% annually.

Just before B retires, shortly after reaching age 65, they buy a second home in an active retirement community. Part of the down payment for the home is the $73,500 supported by medical receipts that they withdraw tax-free from their HSA. After the withdrawal, $162,924 remains in the HSA earning 8% annually. These funds can be withdrawn tax-free to pay premiums for Medicare Part A, B, C, or D coverage and long-term health care costs.4

Quantified benefits of the strategy

Let us assume that in December 2021 a taxpayer receives a $1,000 medical bill for a recent outpatient procedure. She maintains an HDHP and possesses both a $5,000 balance in her HSA and sufficient after-tax investment funds with which to pay the bill. She expects the same risk and return from the HSA investment that she would obtain from the non-HSA investment. Let us compare the 10-year after-tax effects of two ways of using the HSA: (1) paying the $1,000 medical bill personally, requesting reimbursement of the $1,000 from her HSA, and investing the $1,000 reimbursement check outside the HSA, and (2) paying the $1,000 medical bill using existing after-tax investment funds that do not require gain recognition to access, and leaving $1,000 invested within the HSA with annual earnings realizations.

Table 1 (below) shows the results of this comparison across three possible pretax rates of return (2%, 6%, and 12%). In the table, the investments (either inside or outside the HSA) are assumed to produce interest or short-term capital gain income that is reinvested annually and, if invested outside the HSA, are subject to two possible marginal tax rates (20% and 40%).

Table 1, Panel A, shows that, facing a 20% marginal tax rate, after 10 years, the investment outside the HSA increases in value by 17.2%, 59.8%, and 150.1% with respective annual pretax returns of 2%, 6%, and 12%. However, if the funds are invested within the HSA, the 20% annual tax does not apply. Thus, the annual pretax returns of 2%, 6%, and 12% are the after-tax returns. At 2%, 6%, and 12%, the 10-year cumulative after-tax returns are 21.9%, 79.1%, and 210.6%, respectively. If the only difference between investing outside the HSA and inside the HSA is the 20% annual tax on investment earnings, a $1,000 investment within the HSA will produce cumulative 10-year returns that are 4.7, 19.3, and 60.5 percentage points greater than an investment outside the HSA, given pretax returns of 2%, 6%, and 12%, respectively. In Panel B, the marginal tax rate is 40%, and the additional after-tax benefit of investing within the HSA nearly doubles to 9.2, 36.7, and 110.2 percentage points across the respective 2%, 6%, and 12% pretax returns.

Table 2 (below) shows comparable figures to Table 1, except that the underlying investment produces taxable gain only at the end of the 10-year period. The capital gains tax rate for the investment outside the HSA is assumed to be 15% in Panel A and 30% in Panel B. For example, in the first column of Panel A, the $1,000 investment that earns 2% compounded annually produces a pretax investment value of $1,218.99 (i.e., $1,000 × (1 + 0.02)10). The increase in investment value, $218.99, is subject to 15% capital gains tax ($32.85), which leaves an after-tax investment of $1,186.15 and an after-tax 10-year cumulative return of 18.6%.

If the $1,000 had remained invested inside the HSA at the same 2% compounded annually, it would have produced an after-tax investment valued at $1,218.99 and a 10-year after-tax return of 21.9%, 3.3 percentage points higher than if invested outside the HSA. Assuming pretax rates of return of 6% and 12%, respectively, an investment inside the HSA produces cumulative 10-year investment returns that are 11.9 and 31.6 percentage points higher than an investment outside the HSA. In Panel B, we see that increasing the 15% long-term capital gains tax to 30% doubles the additional 10-year after-tax return from delaying HSA reimbursement to 6.6, 23.7, and 63.2 percentage points across the 2%, 6%, and 12% respective annual pretax rates of return.

Tables 1 and 2 show that funds allowed to remain in an HSA produce greater after-tax returns than funds withdrawn from an HSA and then invested. The differential is widest when the underlying investment produces higher pretax rates of returns and when the taxpayer’s marginal tax rate is greater. Also note that keeping the funds inside the HSA has greater relative tax benefits when the underlying investment produces annual earnings realizations (Table 1) than when it produces end-of-the-investment-period capital gains (Table 2).

Comparing the HSA with a traditional IRA and a Roth IRA

A variety of investments provide tax benefits, including (1) purchasing a security that produces tax-exempt municipal bond interest; (2) acquiring real estate and property that produces tax-sheltering depreciation; and (3) investing in nondividend growth securities that defer gain realizations, among many other possibilities. But for many taxpayers, IRAs are comparable with the HSA. If a taxpayer is familiar with an HSA, she also likely is somewhat familiar with a traditional IRA or a Roth IRA. So, next we compare the features of these tax-favored vehicles, although it is important to note that it is quite possible, and likely advisable, for a taxpayer to utilize both an HSA and an IRA simultaneously.

Some pertinent HSA details: An HSA is available to any taxpayer who maintains an HDHP, who has no other health insurance (including Medicare), and who cannot be claimed as a dependent on someone else’s tax return. For this purpose, an HDHP must meet the requirements of Sec. 223(c)(2), including 2022 maximum annual out-of-pocket expenditures of $7,050 for a self-only plan or $14,100 for a family plan ($7,000 and $14,000, respectively, in 2021). In accord with its high-deductible name, an HDHP must also have 2022 (and 2021) minimum deductible amounts of $1,400 for a self-only plan and $2,800 for a family plan.

Contributions to an HSA are deductible if contributed by a taxpayer or excludable from gross income if contributed by a taxpayer’s employer. However, once a taxpayer begins Medicare coverage, no contributions to an HSA are allowed. For taxpayers who will begin Medicare in the month they turn 65, contributions to the HSA must cease and the taxpayer can only deduct a month-based pro rata portion of the annual HSA contribution limit for that year. Taxpayers should be aware that they can become accidentally enrolled in Medicare when they turn 65 because the Social Security Administration automatically enrolls them or because they work for a smaller employer who automatically shifts medical insurance to Medicare upon reaching their 65th birthday. However, a taxpayer can reject these automatic enrollments, allowing the taxpayer to continue making tax-deductible contributions to an HSA as long as he or she maintains coverage under a qualified HDHP.5

Some employers allow employees to receive some (or all) of their health insurance benefit in the form of contributions to an HSA, which are deductible to the employer and excludable to the employee. Taxpayers without this form of compensation can make their own contributions. Regardless of source, the annual contributions to an HSA are limited in 2022 to $3,650 for an individual self-only plan or $7,300 for a family plan ($3,600 and $7,200, respectively, in 2021), and an additional $1,000 for taxpayers who are age 55 by the end of the tax year.

Withdrawals from an HSA are tax-free if they are used for qualified medical expenses, as defined in Sec. 223(d)(2), that, for expenditures incurred after Dec. 31, 2019, include menstrual care products and over-the-counter medicine.6 A taxpayer must be able to substantiate that the withdrawals were used for qualified medical expenses. Withdrawals from an HSA greater than amounts used for qualified medical expense are taxable, and an additional 20% penalty is applied to withdrawals before the taxpayer reaches age 65 that are not used for qualified medical expenses. The 20% penalty is waived upon the death or disability of the beneficiary. The HSA has no minimum required distributions.

Comparable aspects of traditional IRAs and Roth IRAs: Neither the traditional nor Roth IRA requires health insurance coverage of any kind, and certainly not HDHP coverage. On the other hand, both IRA types require service-related income (“compensation”), while an HSA can be used to reduce any type of taxable income. Contributions to either the traditional IRA or Roth IRA (or both) are limited to the lesser of $6,000 (in both 2021 and 2022) or taxable service-related compensation. An additional $1,000 is allowed for contributions to the IRA account(s) by taxpayers who are age 50 by the end of the tax year, five years younger than the 55 required for the $1,000 addition for an HSA.

Like contributions to an HSA, contributions to a traditional IRA generally are deductible by taxpayers. It is also possible to structure excludable employer contributions on behalf of employees under separate rules for a Sec. 408(k) SEP IRA or a Sec. 408(p) SIMPLE IRA. However, taxpayers with an employer-provided retirement plan (e.g., Sec. 401(k)) can only deduct their IRA contribution if they have modest amounts of income. Specifically, for these taxpayers, the traditional IRA contribution deduction completely phases out in 2022 when modified adjusted gross income (MAGI) reaches $78,000 for single or head-of-household taxpayers, $129,000 for married-filing-jointly taxpayers, or $10,000 for married-filing-separately taxpayers.

Contributions to a Roth IRA are not deductible, in contrast with contributions to both an HSA and a traditional IRA. Also, for Roth IRAs, contributions are generally disallowed for higher-income taxpayers. In 2022, the amount a taxpayer can contribute to a Roth IRA is completely phased out when MAGI reaches $214,000 for a married-filing-jointly filer, $144,000 for a single or head-of-household filer, or $10,000 for a married-filing-separately filer.7

Withdrawals from a traditional IRA are taxable. Furthermore, a 10% additional tax on early distributions applies to amounts withdrawn before the taxpayer reaches age 59½. Withdrawals from a Roth IRA are not taxable and not subject to the 10% additional tax on early distributions if they are made after the taxpayer reaches age 59½ and the taxpayer has had a Roth IRA for at least five years. Withdrawals of contributions to a Roth IRA at any age are not taxable or subject to the 10% additional tax on early distributions. However, withdrawals of earnings from a Roth IRA generally are taxable and may be subject to the 10% additional tax on early distributions unless one of several exceptions applies.

Table 3 (below) compares basic features of traditional IRAs, Roth IRAs, and HSAs as investment vehicles.


Flexibility and tax benefits

Taxpayers with HSAs receive tax and flexibility benefits when they pay medical costs using non-HSA funds. The tax benefit arises because HSA withdrawals are tax-exempt income to the extent that they are supported by receipts for qualified medical expenses. The flexibility arises because the taxpayer can choose when to submit the receipts, accumulating them over time until the taxpayer chooses to make a tax-free withdrawal. Compared with either a traditional IRA or a Roth IRA, an HSA has the advantage that it accumulates tax-exempt income that can be withdrawn at any age, subject only to the requirement that the taxpayer can submit receipts for qualified medical expenses.

1This article only summarizes, compares, and analyzes some of the key features of the HSA, traditional IRA, and Roth IRA tax-favored health and retirement savings vehicles. Other sources should be consulted for complete details, which could include related articles in The Tax Adviser and Tax Insider: Zonneveld, “Health Savings Accounts Can Save Taxpayers Money,” Tax Insider (Oct. 10, 2019); Mindy, “How to Make Sure an HSA Avoids ERISA,” Tax Insider (Sept. 28, 2017); Doerrer and Trotta, “Developing a Solid Approach to Advising Clients on Roth IRAs,” 51 The Tax Adviser 604 (September 2020); and Lott “Roth IRA Planning,” 47 The Tax Adviser 202 (March 2016).

2See Cautero, One Mom Shares How Much It Cost to Have a Baby With an HDHP,” Northwestern Mutual website (Oct. 21, 2020).

3Details of the M and J computations can be viewed here.

4Details of the B and G computations can be viewed here.

5Practitioners should discuss with the clients the possible downsides of not enrolling in Medicare Part A, which are beyond the scope of this article.

6Coronavirus Aid, Relief, and Economic Security (CARES) Act, P.L. 116-136, Sec. 3702, Sec. 223(d)(2).

7It is possible to circumvent Roth income limitations using a so-called backdoor Roth conversion strategy where the taxpayer contributes to a traditional IRA and, by the end of the tax year, the traditional IRA is rolled into a Roth IRA so that no balance remains in any traditional SEP or SIMPLE IRA account at year end. Details of this strategy are beyond the scope of this article.

Contributor

Jeffrey Gramlich, Ph.D., is a professor of accounting at Washington State University in Pullman, Wash. He is also the director of the Hoops Institute of Taxation Research and Policy. For more information about this article, contact thetaxadviser@aicpa.org.

 


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January 13, 2022

Importance of purchase price allocation in real estate transactions

By Jennifer M. Ray, CPA, Frazier & Deeter LLC, Tampa, Fla.

December 1, 2021

The bright pink house for sale was an eye-catcher. Built in the 1960s, this not-really-updated two-bedroom, one-bath house was purchased in 2001 for $100,000. In 2019, the asking price was $300,000, but it did not sell. Fast forward to 2021, and during a pandemic, the same house sold for $400,000. Could this little gem of construction really have increased so much in value in a couple of years? Or possibly was it the fact that it was on an extra-wide waterfront lot?

Suppose that this pink house was an income-producing property for the seller. When the property was originally acquired, the purchase price would have been allocated between the land and the building so that the building could be depreciated. Typically, in this situation the owner wants to be able to allocate as much purchase price as possible to the building so that the cost can be recouped (albeit ever so slowly) by depreciation. Often, this allocation is an afterthought and is done using the 20/80 rule of thumb (20% of the purchase price to the land and 80% of the purchase price to the building).

To calculate the gain on a sale, the same principle applies — the sales price needs to be allocated between the land and the building. Again, this allocation is typically done as an afterthought and, quite frankly, at the time the return is being prepared, potentially more than 1½ years after the sale. Here is where tax practitioners have a responsibility to advise their clients as to the significance of the land/building value allocation and what it means to the client’s tax bill.

Depreciable real estate, whether residential or commercial, that is used in a trade or business is Sec. 1231 property. The sale of Sec. 1231 property results in taxation at capital gain rates if there is a gain and ordinary income rates if there is a loss. Property owners are typically aware of the favorable tax rates they are allowed upon sale, but just like the rules of grammar, there is usually an exception to the rule. For depreciable real estate, the exception is in Sec. 1250, which provides that to the extent of depreciation taken (or allowed), the gain on the real estate sale is taxed at ordinary rates up to 25%. Depreciable real property is taxed at 25% up to the amount of depreciation taken and then taxed at capital gain rates. On the other hand, land is also Sec. 1231 property, but because it is not eligible for depreciation, it is not Sec. 1250 property.

To return to the little pink house on the extra-wide waterfront lot, which this analysis supposes is rental property: This more-than-50-year-old house was sold for four times its purchase price 20 years after acquisition. The tax practitioner likely did an easy 20/80 allocation to establish the house value for depreciation purposes. It would be easy enough to do the same for the sale and call it a day. The firm has other returns to get done, and this is just one more it can check off its list.

Under this approach, gain would be calculated on the sale first by allocating $320,000 of sale proceeds to the house and $80,000 to the land. Remember that the initial purchase price of $100,000 was allocated $80,000 to the house and $20,000 to the land. Assuming no closing costs and $60,000 of accumulated depreciation (for ease of calculation), the Sec. 1250 gain is $60,000 and the Sec. 1231 gain is $300,000 ($240,000 for the house and $60,000 for the land). Using the maximum capital gain rate, the tax on the sale is $75,000 (Sec. 1250 gain of $15,000 ($60,000 × 25%) and Sec. 1231 gain of $60,000 ($300,000 × 20%)). But is this really in the client’s best interest? Remember, it is the tax practitioner’s responsibility to advocate for the client.

In reality, the purchaser of this property has little to no interest in the ’60s-style pink house. The real value of this property lies in the large waterfront lot (sunsets included). With this in mind, a tax practitioner can rethink the purchase price allocation of the $400,000 sale proceeds and potentially allocate $20,000 to the house and $380,000 to the land. Using this method, the gain on the house is $0, and the entire $360,000 gain ($380,000 — $20,000) is on the land at capital gain rates. The resulting tax is $72,000 ($360,000 × 20%), a $3,000 cash-in-pocket savings over the 20/80 allocation method. Not only has the tax practitioner saved the client $3,000 (possibly more than the cost of the invoice), but he or she is also a tax hero, bound to receive numerous referrals from a happy client.

Note that it is important to properly document the allocation of value between the building and the land. Ideally, an appraisal would separately state the land and building values. Often, the tax practitioner finds out about a sale after the fact, and such an appraisal is not practical. In this case, the practitioner may look to the county tax assessor’s allocation, the advice of a knowledgeable real estate professional, or even an estimated replacement cost for the building (see Meiers, T.C. Memo. 1982-51).

In a year when real estate prices are soaring in many areas of the country, these easily overlooked allocations can have a significant tax impact. The above example is a relatively small dollar amount for real estate, and the tax savings could easily be multiplied for larger, more valuable properties. By using the proper land/building value allocation, tax practitioners can continue to do their best for clients.

EditorNotes

Todd Miller, CPA, is a tax partner at Maxwell Locke & Ritter in Austin, Texas.

For additional information about these items, contact Todd Miller at 352-727-4155 or taxclinic@cpamerica.org.

Contributors are members of or associated with CPAmerica Inc.


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January 11, 2022

Minimizing a hobby loss issue by electing S status

Editor: John Baer, CPA

December 1, 2021

If an activity is not engaged in for profit, the “hobby loss” rules of Sec. 183(a) provide that deductions in excess of gross income are not allowable. This statute specifically applies to activities engaged in by both individuals and S corporations. Accordingly, the mere form of conducting business is not the determinative factor in the hobby loss issue.

Due to the suspension of miscellaneous itemized deductions in the years 2018 through 2025, deductions for hobby expenses under Sec. 183 are not allowed in those years (Sec. 67(g), as added by the law known as the Tax Cuts and Jobs Act (TCJA), P.L. 115-97). The inability of a taxpayer to deduct even a portion of the hobby expenses while recognizing all the hobby income in adjusted gross income makes establishing a profit motive for a hobby activity even more desirable.

The question of whether an activity is engaged in for profit involves a series of subjective interpretations regarding the business. The regulations list nine relevant factors to consider when determining whether an activity is engaged in for profit (Regs. Sec. 1.183-2(b)):

  • The manner in which the taxpayer carries on the activity, including such formalities as maintaining books and records;
  • The expertise of the taxpayer or his or her advisers;
  • The time and effort expended by the taxpayer in carrying on the activity;
  • An expectation that assets used in the activity may appreciate in value;
  • The taxpayer’s success in carrying on other similar activities;
  • The taxpayer’s history of income or losses with respect to the activity;
  • The amount of occasional profits that are earned;
  • The financial status of the taxpayer; and
  • The elements of personal pleasure or recreation involved with the activity.

Planning tip: Although an activity must be engaged in for profit to avoid the hobby loss rules, a predictable or highly probable expectation of profit is not required. For example, a taxpayer may well have a profit motive for investing in a very risky venture (e.g., wildcat oil and gas drilling or providing capital to startup businesses). The circumstances should indicate that the taxpayer entered into or continued the activity with the honest objective of making a profit, but even risky investments can be considered made for a profit motive.

The following example illustrates planning devices that can be used to reduce the chances that a hobby loss issue will arise.

Example. Planning to avoid the hobby loss issue: G owns a highly successful auto repair business that he operates in partnership with brothers N and J, who are unrelated to G. As a separate activity, G maintains several racing cars he enters in competitions on evenings and weekends. G’s auto racing activities have been increasingly successful, and last year he won prize money of about $10,000. He reports this activity on a Schedule C, Profit or Loss From Business, within his Form 1040, U.S. Individual Income Tax Return. Despite the increasing gross receipts of this proprietorship, the operating expenses, travel costs, and depreciation on several racing vehicles have resulted in large losses for the venture.

G expects his auto racing winnings to continue to increase, but he also recognizes that the deductions will continue to exceed the income for the next several years. He visits his tax practitioner and inquires whether he can minimize the risk of a hobby loss attack in case of an IRS audit. Will an S election assist in preventing a hobby loss determination?

If G’s car racing proprietorship was determined by the IRS not to have a sufficient profit motive, he would only be allowed to claim deductions to offset the gross income and would not be allowed to claim a loss within his personal tax return. In making this determination, the subjective factors listed above must be considered.

The first of these factors is clearly enhanced when a taxpayer conducts the activity in a business-like fashion, maintaining a separate checking account, accurate business records, and the other formalities normally associated with a for-profit trade or business. If G incorporates, he would be required to use a separate corporate checking account for the car racing activity and file a separate S corporation tax return. He would probably also become involved in the payroll tax system by issuing a Form W-2, Wage and Tax Statement, for the labor he provides to the corporate activity.

At a minimum, the existence of the S corporation would enhance the business-like appearance of the activity. In fact, by using the additional procedures associated with the formation of a corporation and expanding his recordkeeping requirements, G would likely improve his ability to meet the various subjective tests that go into the determination of a hobby loss issue. However, G must clearly understand that the mere formation of an S corporation provides no direct statutory assurance of overcoming the hobby loss question; the courts have held that losses incurred by an S corporation are deductible by the shareholders only if the corporation is in fact engaged in a for-profit trade or business (DuPont, 234 F. Supp. 681 (D. Del. 1964); Demler, T.C. Memo. 1966-117).

The tax practitioner would also advise G of the other advantages and disadvantages associated with S corporation status. For example, any salary G draws from the corporation for his labor would present additional Federal Insurance Contributions Act and Federal Unemployment Tax Act costs that would not exist in a proprietorship.

This case study has been adapted from the Checkpoint Tax Planning and Advisory Guide‘s S Corporations topic. Published by Thomson Reuters, Carrollton, Texas, 2021 (800-431-9025; tax.thomsonreuters.com).

Contributor
John Baer, CPA, is a specialist editor with Thomson Reuters Checkpoint. For more information about this column, contact thetaxadviser@aicpa.org

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