Protecting Americans from Tax Hikes Act of 2015

On the evening of December 15, 2015, the House released the text of the Protecting Americans from Tax Hikes Act of 2015 (Division Q of House amendment #2 to the Senate amendment to H.R. 2029, Military Construction and Veterans Affairs and Related Agencies Appropriations Act, 2016).  Nickname is the PATH Act.

The Act is expected to be put up for a vote as early as Thursday, December 17.   The 233-page full text can be found at http://waysandmeans.house.gov/wp-content/uploads/2015/12/PATH_Act_xml.pdf (pdf) and http://docs.house.gov/billsthisweek/20151214/R121515.006.xml (text) and a 20-page section-by-section summary can be found on the Ways and Means Committee's website at https://rules.house.gov/sites/republicans.rules.house.gov/files/114/PDF/114-SAHR2029Ex-SxS.pdf.

I recommend reviewing the Ways and Means summary, but the outline is as follows.  Further review to come...

• DIVISION Q—PROTECTING AMERICANS FROM TAX HIKES ACT OF 2015
• Sec. 1. Short title, etc.
• TITLE I—EXTENDERS
• Subtitle A—Permanent extensions
• PART 1—TAX RELIEF FOR FAMILIES AND INDIVIDUALS
• Sec. 101. Enhanced child tax credit made permanent.
• Sec. 102. Enhanced American opportunity tax credit made permanent.
• Sec. 103. Enhanced earned income tax credit made permanent.
• Sec. 104. Extension and modification of deduction for certain expenses of elementary and secondary school teachers.
• Sec. 105. Extension of parity for exclusion from income for employer-provided mass transit and parking benefits.
• Sec. 106. Extension of deduction of State and local general sales taxes.
• PART 2—INCENTIVES FOR CHARITABLE GIVING
• Sec. 111. Extension and modification of special rule for contributions of capital gain real property made for conservation purposes.
• Sec. 112. Extension of tax-free distributions from individual retirement plans for charitable purposes.
• Sec. 113. Extension and modification of charitable deduction for contributions of food inventory.
• Sec. 114. Extension of modification of tax treatment of certain payments to controlling exempt organizations.
• Sec. 115. Extension of basis adjustment to stock of S corporations making charitable contributions of property.
• PART 3—INCENTIVES FOR GROWTH, JOBS, INVESTMENT, AND INNOVATION
• Sec. 121. Extension and modification of research credit.
• Sec. 122. Extension and modification of employer wage credit for employees who are active duty members of the uniformed services.
• Sec. 123. Extension of 15-year straight-line cost recovery for qualified leasehold improvements, qualified restaurant buildings and improvements, and qualified retail improvements.
• Sec. 124. Extension and modification of increased expensing limitations and treatment of certain real property as section 179 property.
• Sec. 125. Extension of treatment of certain dividends of regulated investment companies.
• Sec. 126. Extension of exclusion of 100 percent of gain on certain small business stock.
• Sec. 127. Extension of reduction in S-corporation recognition period for built-in gains tax.
• Sec. 128. Extension of subpart F exception for active financing income.
• PART 4—INCENTIVES FOR REAL ESTATE INVESTMENT
• Sec. 131. Extension of minimum low-income housing tax credit rate for non-Federally subsidized buildings.
• Sec. 132. Extension of military housing allowance exclusion for determining whether a tenant in certain counties is low-income.
• Sec. 133. Extension of RIC qualified investment entity treatment under FIRPTA.
• Subtitle B—Extensions through 2019
• Sec. 141. Extension of new markets tax credit.
• Sec. 142. Extension and modification of work opportunity tax credit.
• Sec. 143. Extension and modification of bonus depreciation.
• Sec. 144. Extension of look-thru treatment of payments between related controlled foreign corporations under foreign personal holding company rules.
• Subtitle C—Extensions through 2016
• PART 1—TAX RELIEF FOR FAMILIES AND INDIVIDUALS
• Sec. 151. Extension and modification of exclusion from gross income of discharge of qualified principal residence indebtedness.
• Sec. 152. Extension of mortgage insurance premiums treated as qualified residence interest.
• Sec. 153. Extension of above-the-line deduction for qualified tuition and related expenses.
• PART 2—INCENTIVES FOR GROWTH, JOBS, INVESTMENT, AND INNOVATION
• Sec. 161. Extension of Indian employment tax credit.
• Sec. 162. Extension and modification of railroad track maintenance credit.
• Sec. 163. Extension of mine rescue team training credit.
• Sec. 164. Extension of qualified zone academy bonds.
• Sec. 165. Extension of classification of certain race horses as 3-year property.
• Sec. 166. Extension of 7-year recovery period for motorsports entertainment complexes.
• Sec. 167. Extension and modification of accelerated depreciation for business property on an Indian reservation.
• Sec. 168. Extension of election to expense mine safety equipment.
• Sec. 169. Extension of special expensing rules for certain film and television productions; special expensing for live theatrical productions.
• Sec. 170. Extension of deduction allowable with respect to income attributable to domestic production activities in Puerto Rico.
• Sec. 171. Extension and modification of empowerment zone tax incentives.
• Sec. 172. Extension of temporary increase in limit on cover over of rum excise taxes to Puerto Rico and the Virgin Islands.
• Sec. 173. Extension of American Samoa economic development credit.
• Sec. 174. Moratorium on medical device excise tax.
• PART 3—INCENTIVES FOR ENERGY PRODUCTION AND CONSERVATION
• Sec. 181. Extension and modification of credit for nonbusiness energy property.
• Sec. 182. Extension of credit for alternative fuel vehicle refueling property.
• Sec. 183. Extension of credit for 2-wheeled plug-in electric vehicles.
• Sec. 184. Extension of second generation biofuel producer credit.
• Sec. 185. Extension of biodiesel and renewable diesel incentives.
• Sec. 186. Extension and modification of production credit for Indian coal facilities.
• Sec. 187. Extension of credits with respect to facilities producing energy from certain renewable resources.
• Sec. 188. Extension of credit for energy-efficient new homes.
• Sec. 189. Extension of special allowance for second generation biofuel plant property.
• Sec. 190. Extension of energy efficient commercial buildings deduction.
• Sec. 191. Extension of special rule for sales or dispositions to implement FERC or State electric restructuring policy for qualified electric utilities.
• Sec. 192. Extension of excise tax credits relating to alternative fuels.
• Sec. 193. Extension of credit for new qualified fuel cell motor vehicles.
• TITLE II—PROGRAM INTEGRITY
• Sec. 201. Modification of filing dates of returns and statements relating to employee wage information and nonemployee compensation to improve compliance.
• Sec. 202. Safe harbor for de minimis errors on information returns and payee statements.
• Sec. 203. Requirements for the issuance of ITINs.
• Sec. 204. Prevention of retroactive claims of earned income credit after issuance of social security number.
• Sec. 205. Prevention of retroactive claims of child tax credit.
• Sec. 206. Prevention of retroactive claims of American opportunity tax credit.
• Sec. 207. Procedures to reduce improper claims.
• Sec. 208. Restrictions on taxpayers who improperly claimed credits in prior year.
• Sec. 209. Treatment of credits for purposes of certain penalties.
• Sec. 210. Increase the penalty applicable to paid tax preparers who engage in willful or reckless conduct.
• Sec. 211. Employer identification number required for American opportunity tax credit.
• Sec. 212. Higher education information reporting only to include qualified tuition and related expenses actually paid.
• TITLE III—MISCELLANEOUS PROVISIONS
• Subtitle A—Family tax relief
• Sec. 301. Exclusion for amounts received under the Work Colleges Program.
• Sec. 302. Improvements to section 529 accounts.
• Sec. 303. Elimination of residency requirement for qualified ABLE programs.
• Sec. 304. Exclusion for wrongfully incarcerated individuals.
• Sec. 305. Clarification of special rule for certain governmental plans.
• Sec. 306. Rollovers permitted from other retirement plans into simple retirement accounts.
• Sec. 307. Technical amendment relating to rollover of certain airline payment amounts.
• Sec. 308. Treatment of early retirement distributions for nuclear materials couriers, United States Capitol Police, Supreme Court Police, and diplomatic security special agents.
• Sec. 309. Prevention of extension of tax collection period for members of the Armed Forces who are hospitalized as a result of combat zone injuries.
• Subtitle B—Real estate investment trusts
• Sec. 311. Restriction on tax-free spinoffs involving REITs.
• Sec. 312. Reduction in percentage limitation on assets of REIT which may be taxable REIT subsidiaries.
• Sec. 313. Prohibited transaction safe harbors.
• Sec. 314. Repeal of preferential dividend rule for publicly offered REITs.
• Sec. 315. Authority for alternative remedies to address certain REIT distribution failures.
• Sec. 316. Limitations on designation of dividends by REITs.
• Sec. 317. Debt instruments of publicly offered REITs and mortgages treated as real estate assets.
• Sec. 318. Asset and income test clarification regarding ancillary personal property.
• Sec. 319. Hedging provisions.
• Sec. 320. Modification of REIT earnings and profits calculation to avoid duplicate taxation.
• Sec. 321. Treatment of certain services provided by taxable REIT subsidiaries.
• Sec. 322. Exception from FIRPTA for certain stock of REITs.
• Sec. 323. Exception for interests held by foreign retirement or pension funds.
• Sec. 324. Increase in rate of withholding of tax on dispositions of United States real property interests.
• Sec. 325. Interests in RICs and REITs not excluded from definition of United States real property interests.
• Sec. 326. Dividends derived from RICs and REITs ineligible for deduction for United States source portion of dividends from certain foreign corporations.
• Subtitle C—Additional provisions
• Sec. 331. Deductibility of charitable contributions to agricultural research organizations.
• Sec. 332. Removal of bond requirements and extending filing periods for certain taxpayers with limited excise tax liability.
• Sec. 333. Modifications to alternative tax for certain small insurance companies.
• Sec. 334. Treatment of timber gains.
• Sec. 335. Modification of definition of hard cider.
• Sec. 336. Church plan clarification.
• Subtitle D—Revenue Provisions
• Sec. 341. Updated ASHRAE standards for energy efficient commercial buildings deduction.
• Sec. 342. Excise tax credit equivalency for liquified petroleum gas and liquified natural gas.
• Sec. 343. Exclusion from gross income of certain clean coal power grants to non-corporate taxpayers.
• Sec. 344. Clarification of valuation rule for early termination of certain charitable remainder unitrusts.
• Sec. 345. Prevention of transfer of certain losses from tax indifferent parties.
• Sec. 346. Treatment of certain persons as employers with respect to motion picture projects.
• TITLE IV—TAX ADMINISTRATION
• Subtitle A—Internal Revenue Service reforms
• Sec. 401. Duty to ensure that Internal Revenue Service employees are familiar with and act in accord with certain taxpayer rights.
• Sec. 402. IRS employees prohibited from using personal email accounts for official business.
• Sec. 403. Release of information regarding the status of certain investigations.
• Sec. 404. Administrative appeal relating to adverse determinations of tax-exempt status of certain organizations.
• Sec. 405. Organizations required to notify Secretary of intent to operate under 501(c)(4).
• Sec. 406. Declaratory judgments for 501(c)(4) and other exempt organizations.
• Sec. 407. Termination of employment of Internal Revenue Service employees for taking official actions for political purposes.
• Sec. 408. Gift tax not to apply to contributions to certain exempt organizations.
• Sec. 409. Extend Internal Revenue Service authority to require truncated Social Security numbers on Form W–2.
• Sec. 410. Clarification of enrolled agent credentials.
• Sec. 411. Partnership audit rules.
• Subtitle B—United States Tax Court
• PART 1—TAXPAYER ACCESS TO UNITED STATES TAX COURT
• Sec. 421. Filing period for interest abatement cases.
• Sec. 422. Small tax case election for interest abatement cases.
• Sec. 423. Venue for appeal of spousal relief and collection cases.
• Sec. 424. Suspension of running of period for filing petition of spousal relief and collection cases.
• Sec. 425. Application of Federal rules of evidence.
• PART 2—UNITED STATES TAX COURT ADMINISTRATION
• Sec. 431. Judicial conduct and disability procedures.
• Sec. 432. Administration, judicial conference, and fees.
• PART 3—CLARIFICATION RELATING TO UNITED STATES TAX COURT
• Sec. 441. Clarification relating to United States Tax Court.
• TITLE V—TRADE-RELATED PROVISIONS
• Sec. 501. Modification of effective date of provisions relating to tariff classification of recreational performance outerwear.
• Sec. 502. Agreement by Asia-Pacific Economic Cooperation members to reduce rates of duty on certain environmental goods.
• TITLE VI—BUDGETARY EFFECTS
• Sec. 601. Budgetary effects.

WHY do we use the "lag method" to deduct California Franchise Taxes?

I once got a call (on behalf of another CPA) asking WHY an accrual-basis taxpayer's deduction for California Franchise Taxes ("CFT") must be taken on the "lag method."

In short, the "lag method" involves taking a deduction for the CFT in the year following that in which the taxable income arose from which it was determined (e.g., CFT computed at $100x earned in 20x1, times 8.84% is $8.84x and is deductible in 20x2 for federal income tax purposes).  While this rule has applied for many years, the reason for it doesn't seem to be widely known.

In a nutshell, the CFT deduction is subject to the “lag method” for federal tax purposes due to Internal Revenue Code section 461(d).  But wait, you say...section 461(d) doesn't say anything about CFT!  All it says is the following:

461(d) Limitation on acceleration of accrual of taxes.

      (1) General rule. - In the case of a taxpayer whose taxable income is computed under an accrual method of accounting, to the extent that the time for accruing taxes is earlier than it would be but for any action of any taxing jurisdiction taken after December 31, 1960, then, under regulations prescribed by the Secretary, such taxes shall be treated as accruing at the time they would have accrued but for such action by such taxing jurisdiction.

      (2) Limitation. - Under regulations prescribed by the Secretary, paragraph (1) shall be inapplicable to any item of tax to the extent that its application would (but for this paragraph) prevent all persons (including successors in interest) from ever taking such item into account.

So what does the above text have to do with delaying the deduction for CFT?  Well, it goes back to the general rules for timing (section 461) as well as a bit of history.

At the risk of boring some readers, a bit of background is warranted here.  Any accrual-basis taxpayer wishing to take an expenditure into account (whether deducting or capitalizing it) must first meet the all events test.  Moreover, such item cannot be taken into account until there is economic performance.

Section 461(h)(4) provides that "the all events test is met with respect to any item if all events have occurred which determine the fact of liability and the amount of such liability can be determined with reasonable accuracy." In other words, the liability in question (e.g., for the tax owed to California) must (1) be unconditionally due to the person to whom it's owed, and (2) must be able to be reasonably determined as of the day it's to be taken into account (i.e., generally the last day of the tax year).

Section 461(h)(2) and Treas. Reg. section 1.461-4 provide the rules for determining when economic performance occurs.  In the case of taxes, economic performance occurs when those taxes are paid, in keeping with Treas. Reg. section 1.461-4(g)(6).

Based on the section 461 rules above, why wouldn't the CFT be properly accrued as of the last day of the year?  After all, at year-end isn't (1) the tax reasonably ascertainable, (2) the amount unconditionally due, and (3) assuming estimates were paid throughout the year economic performance was met (or the taxpayer had adopted the recurring item exception of section 461(h)(3) and Treas. Reg. section 1.461-5)?

The answer, is currently yes, but used to be no. And that's where the history comes in.  

You see, in the early 1970s, California modified its franchise tax regime which imposed a tax on most corporations doing business in the state.  Before this change, a corporation's franchise tax would be measured on the corporation's current-year income, but would apply to the exercise of its corporate franchise (i.e., the right to do business in California) starting with the first day of the corporation's following year.  As a result:

• All events test met (unconditionally due):   No, because the tax was not owed until the company started exercising its corporate franchise on the first day of the next year.
• All events test met (reasonably ascertainable):   Yes, since taxable income and the tax rate were "knowable" at year-end.
• Economic performance met:  Presumably Yes, as noted above.

In doing so, California took action (after 12/31/1960) that effectively accelerated the accrual date of the CFT.  This invoked section 461(d)(1), thereby negating that acceleration for federal income tax purposes.

So there you have it.


Final notes:  

• Too often, taxpayers (and their tax professionals) don't fully understand the rules for claiming deductions in the correct year.  That means write-offs are sometimes being taken too early and sometimes too late.
• The CFT tax deduction is just one example of how the "income tax accounting" rules can be surprisingly complicated and counterintuitive.
• I spent considerable time in KMPG's Washington National Tax practice and have personally seen how timing issues can have a multi-million dollar tax impact on someone's tax bill.  Moreover, timing issues exist in virtually every industry and area of tax, so knowing the rules and how to apply them will (literally) affect most individuals and businesses.  Let me know how I can help you (or your advisor) navigate this often-misunderstood area and avoid costly mistakes!

For more discussion of this rule, the following are enlightening.

• Rev. Rul.  2003-90 (http://www.irs.gov/pub/irs-drop/rr-03-90.pdf)
• Wells Fargo & Co. v. U.S., No. 09-CV-2764 (D. Minn. 8/10/12) (http://www.gpo.gov/fdsys/pkg/USCOURTS-mnd-0_09-cv-02764/pdf/USCOURTS-mnd-0_09-cv-02764-5.pdf)