KPMG report: Preliminary analysis and observations regarding certain passthrough provisions in JCT Bluebook
December 21, 2018
The staff of the Joint Committee on Taxation (JCT) on December 20, 2018, issued the General Explanation of Public Law 115-97—the “Bluebook.” This report provides initial impressions regarding certain passthrough provisions in the Bluebook (JCS-1-18).
The Bluebook—prepared in consultation with the staffs of the House Committee on Ways and Means, the Senate Committee on Finance, and the Treasury Department’s Office of Tax Policy—provides an explanation of the federal tax provisions enacted in December 2017 as Pub. L. No. 115–97 (the law that is often referred to as the “Tax Cuts and Jobs Act” or the “Act”).
The Bluebook contains an explanation of each provision in the Act—including the reason for change to existing law—and thus may provide insight regarding congressional intent underlying those provisions. Note that the Bluebook is technically not considered “legislative history” with regard to the Act. See FPC v. Memphis Light, Gas & Water Div., 411 U.S. 458, 472 (1973). The courts have applied varying degrees of deference to prior versions of Bluebooks issued with regard to prior legislation.
The Act contained many provisions directly applicable to passthrough entities (i.e., partnerships, S corporations, and sole proprietorships) or their owners. The discussion below provides preliminary observations about certain of those provisions. Specifically, this report addresses:
- Section 199A providing a deduction with respect to qualified business income
- Section 1061 relating to partnership interests held in connection with the performance of services)
- Section 461(l) concerning the limitation on excess business losses of noncorporate taxpayers)
- Section 1371(f) describing the treatment of distributions by certain corporations that revoke S corporation status within two years of the date of the Act’s enactment
KPMG will in the future address other provisions of interest to passthrough entities and their owners in TaxNewsFlash.
Bluebook descriptions of passthrough provisions
Section 199A
Section 199A generally allows individuals (including for this purpose, trusts and estates) a deduction for a tax year of up to 20% of the taxpayer’s non-investment type income of the taxpayer derived from a qualified trade or business. A deduction is also allowed for 20% of aggregate qualified REIT dividends, qualified cooperative dividends, and qualified publicly traded partnership income. Qualified REIT dividends do not include any portion of a dividend received from a REIT that is a capital gain dividend (as defined in section 857(b)(3) or a qualified dividend (as defined in section 1(h)(11)).
A “qualified trade or business” is any trade or business other than a “specified service trade or business” or “SSTB” or the trade or business of performing services as an employee.* The deductible amount with respect to each QTB carried on by a taxpayer generally is subject to certain limitations.
*The exclusion of income attributable to a specified service trade or business does not apply to a taxpayer whose taxable income does not exceed a threshold amount. Specifically, the exclusion does not apply to an individual taxpayer with taxable income (from all sources, not just from the business at issue) of less than $157,500 for individuals and $315,000 for joint filers (the “Threshold Amount”). A phase-out applies to the next $50,000 of taxable income (for individuals) and $100,000 (for joint filers). These amounts are adjusted for inflation. In certain portions of this report, it may be assumed that an individual’s taxable income exceeds the Threshold Amount.
The Bluebook contains several important indications of congressional intent relating to this provision, and some of these are described below.
Specified service trade or business
As noted above, for high income taxpayers, a section 199A deduction is not available with respect to a specified service trade or business. For this purpose, a “specified service trade or business” is –
- Any trade or business involving the performance of services in the fields of health, law, accounting, actuarial science, performing arts, consulting, athletics, financial services, brokerage services, or any trade or business the principal asset of which is the reputation or skill of one or more of its employees or owners; and
- Any trade or business that involves the performance of services that consist of investing and investment management, trading, or dealing in securities (as defined in section 475(c)(2)), partnership interests, or commodities (as defined in section 475(e)(2)).
1. Uncertainty with regard to specified fields
The exclusion from section 199A for a specified service trade or business has resulted in significant uncertainty for taxpayers concerned that they may fall into the exclusion because they are engaged in a trade or business that may fall within one of the prohibited categories. For example, an individual that owns a professional sports franchises may be concerned that the taxpayer could be treated as engaged in the performance of services in the field of athletics—even if that individual had never engaged in any athletic endeavours himself or herself. Similarly, the provision raised the same question concerning certain trades or businesses that arguably were in the field of health but were not owned and operated by doctors, nurses, or other healthcare professionals (e.g., a placement service for employment of nurses).
When they were issued in August of 2018, the proposed regulations (the “Proposed Regulations”) issued by the IRS and Treasury Department increased the uncertainty for certain taxpayers because of the treatment of professional sports teams. The definition of the performance of services in the field of athletics contained in the Proposed Regulations appeared to limit the performance of services in the field of athletics to the performance of services by those individuals that are actual participants in an athletic event through either engaging in the sport itself or in coaching or managing the individuals that do so. However, an example in the Proposed Regulations was inconsistent with what appeared to be a narrow scope. Specifically, the Proposed Regulations contain an example indicating that the owner of a professional sports team would not be eligible for a section 199A deduction with respect to operation of the team.
At least one commentator expressed concern with the Proposed Regulations on this issue and recommended that the IRS and Treasury clarify in final regulations that the owner of a professional sports franchise generally would not be treated as engaged in the performance of services in the field of athletics. In reaction to that comment, KPMG tax professionals understand that a government official informally indicated that the IRS may disagree with the comment. Moreover, the government official informally indicated that the analysis in the Proposed Regulations was not limited to the field of athletics; rather, a similar analysis would apply to other fields. This indicates that, at least at the time of the comment, the IRS and Treasury apparently were not inclined to change the result in the regulatory example (and might actually clarify that it applied to other types of businesses).
Certain language included in the Bluebook appears contrary to the view of the IRS and Treasury with regard to the field of athletics (and the possible extension of that view to other fields). Specifically, in explaining the purpose of section 199A, the Bluebook at page 20 states:
The provision reflects Congress’s belief that a reduction in the corporate income tax rate does not completely address the Federal income tax burden on businesses. While the corporate tax is a tax on capital income, the tax on income from noncorporate businesses may fall on both labor income and capital income. Treating corporate and noncorporate business income more similarly to each other under the Federal income tax requires distinguishing labor income from capital income in a noncorporate business.
Further, in describing the provision itself, the Bluebook provides that “[t]he provision identifies some service businesses that generally give rise to income from labor services, that is, labor income, and excludes those businesses from the provision (subject to a phase-in).”
The language in the Bluebook on this point appears to provide that the general exclusion from section 199A for income attributable to a specified service trade or business was intended to apply to exclude “labor income” from capital income. The owner of a professional sports franchise who does not play in a professional sport but invested a significant amount of capital to acquire the franchise presumably views the income from that franchise as a return on his or her investment. It seems then that the result described in the Proposed Regulations arguably may be inconsistent with congressional intent. KPMG tax professionals understand that the IRS and Treasury consulted with the JCT staff while working on the final section 199A regulations. When those regulations are released, it will be interesting to see if changes have been made in this area.
2. Investment management business
As noted above, a “specified service trade or business” includes a trade or business involving the performance of services that consist of investing and investment management, trading, or dealing. Under both section 199A itself and the Proposed Regulations, it was unclear how broadly that term might be interpreted. For example, there was concern that a taxpayer that is not a commodities trader (in the commonly understood meaning of the term) nevertheless might be treated as a specified service trade or business solely because the nature of its non-financial business involved a commodity (for example, a taxpayer owning an oil storage or transport business).
Language in the Bluebook specifically indicates that this was not intended. Specifically, the Bluebook states that the performance of services that consist of investing and investment management, trading, or dealing is intended to include:
…any trade or business primarily engaged in providing financial markets services (i.e., investing, investment management, trading, or dealing services with respect to financial instruments) to customers, as well as any trade or business that primarily involves investing and managing its own invested capital.… However, a trade or business primarily engaged in the purchase and sale of a physical commodity (so that it might be viewed as engaged in trading or dealing in commodities), and that regularly takes physical possession of the commodity in the ordinary course of its trade or business at a location or facility operated by the business, is not a specified service trade or business because its trade or business does not involve the performance of financial markets services.
This language is favorable for taxpayers that buy actual physical commodities, provide some form of service (e.g., storage or transportation), and then sell that physical commodity to customers. KPMG tax professionals understand that the IRS and Treasury have consulted with the JCT staff while working on final section 199A regulations so those final regulations might reflect revisions consistent with the Bluebook.
3. “Reputation or skill” trade or business
A specified service trade or business includes any trade or business the principal asset of which is the reputation or skill of one or more of its employees or owners. Prior to the issuance of the Proposed Regulations, there was significant uncertainty as to how broadly this term could be interpreted. If interpreted broadly, it could exclude virtually any business operated in the name of an owner or employee (or any business that was successful as a result of the personal reputation or skill of an owner).
In the Proposed Regulations, the IRS and Treasury expressed the view that this rule was intended to describe a narrow set of trades or businesses not otherwise enumerated. In light of this, the IRS and Treasury limited the meaning of the “reputation or skill” clause to fact patterns in which an individual or passthrough entity is engaged in the trade or business of: (1) receiving income for endorsing products or services (including an individual’s share of income or distributions from a passthrough entity for which the individual provides endorsement services); (2) licensing or receiving income for the use of an individual’s image, likeness, name, signature, voice, trademark, or any other symbols associated with the individual’s identity (including an individual’s distributive share of income or distributions from a passthrough entity to which an individual contributes the rights to use the individual’s image); or (3) receiving appearance fees or income (including fees or income to reality performers performing as themselves on television, social media, or other forums, radio, television, and other media hosts, and video game players). This interpretation significantly limits the number of businesses that may be concerned about being ineligible for the section 199A deduction under this provision.
The Bluebook includes insight as to the intent with respect to a “reputation or skill” business. Specifically, the Bluebook states:
For example, a trade or business in which the taxpayer works as an independent contractor for various unrelated businesses, where the business generally holds minimal tangible and intangible property, is a specified service trade or business if the principal asset of such trade or business is the reputation or skill of its owner.
This language appears to be significantly broader than the limited approach adopted by the IRS and Treasury in the Proposed Regulations. As noted above, it is understood that the IRS and Treasury engaged in discussions with the JCT staff while working on final section 199A regulations. It is unclear whether the final regulations will provide for an expanded view of the application of the reputation or skill provision in the definition of a specified service trade or business.
Separate trade or business
The determination of whether and to what extent a taxpayer is entitled to a section 199A deduction initially is determined on the basis of an individual trade or business. Thus, a taxpayer carrying on multiple activities must determine whether it is carrying on a single trade or business or multiple trades or businesses. In certain situations, a single trade or business may increase the taxpayer’s ability to take a section 199A deduction, while in other situations separate trades or businesses may be more favorable. Despite the importance of the determination, neither section 199A itself nor the Proposed Regulations issued provide specific guidance on how the determination is to be made.
The Bluebook provides useful insight as to how that determination was intended to be made.
First, the Bluebook describes authorities regarding whether a taxpayer may use a different method of accounting for different activities; this includes both statutory and regulatory guidance as well as case law.[1] Later, the Bluebook states that section 199A “does not alter the meaning of the term trade or business, which retains its ordinary meaning for Federal income tax purposes.”[2] Here, the Bluebook refers to the accounting method authorities previously mentioned (as well as present law) as guidance in determining whether an activity rises to the level of a trade or business, and whether trades or businesses are treated as separate and distinct from each other for federal income tax purposes. Further, whether one or more trade or business activities or rental activities for purposes of section 469 is not determinative in making the same determination for section 199A purposes. This direct reference to the accounting method authorities which tend to place an emphasis on the maintenance of separate books and records (and rejection of the section 469 determination) provides useful guidance to taxpayer in determining whether their activities constitute one (or more than one) trade or business.
Partner’s share of unadjusted basis
As noted above, a taxpayer’s ability to take a section 199A deduction is subject to a limitation, which is the lesser of—
- An amount equal to 20% of the taxpayer's qualified business income (QBI) with respect to the qualified trade or business; or
- The greater of—
- 50% of the W-2 wages paid with respect to the qualified trade or business (the “Wage Limitation”);[3] or
- The sum of 25% of the W-2 wages with respect to the qualified trade or business plus 2.5% of the unadjusted basis (determined immediately after an acquisition) of all qualified property (the “Wage and Basis Limitation”).[4]
Under the Wage and Basis Limitation, a taxpayer’s share of the unadjusted basis immediately after acquisition of qualified property (the “UBIA”) is relevant. Some practitioners have argued that there is uncertainty in the determination of a partner’s share of the UBIA of a qualified trade or business operated by a partnership under both the statutory language and the Proposed Regulations.
The Proposed Regulations provide that a partner’s allocable share of UBIA generally is an amount that bears the same proportion to total UBIA as a partner’s or a shareholder’s share of tax depreciation bears to the entity’s total tax depreciation attributable to the property for the year (the “general depreciation rule”). However, a partner’s allocable share of depreciation with respect to property that does not give rise to depreciation (which may occur if qualified property is still in its section 199A “recovery period,” but has been fully depreciated for federal tax purposes) is based on how gain with respect to property would be allocated under sections 704(b) and 704(c) if property were sold (the “exception”). In both cases, special allocations of depreciation or gain to a partner may affect the partner’s relative shares of depreciation (and thus the partner’s relative shares of UBIA).
The general depreciation rule appears to provide that a partner’s allocable share of depreciation is determined by reference to a ratio calculated as the total amount of tax depreciation allocated to the partner for the tax year over the total amount of the partnership’s tax depreciation for the year; that ratio is then multiplied by the partnership’s total UBIA for the year. In other words, the determination appears to be made not on a property by property basis, but rather as a percentage of total depreciation with respect to all of the partnership’s assets. If that is the case, then it is unclear when and how the second part of the rule applies.
Under the exception, however, a partner’s allocable share of depreciation “with respect to property that does not give rise to depreciation” is based on how tax gain would be allocated if the property were sold. This language implies a property by property determination with regard to assets that are still in the recovery period but no longer giving rise to tax deprecation. When read with the general rule, it is unclear how to apply the rules when a partnership has several assets that have UBIA, all but one of which are still being depreciated for tax purposes. Because at least some of the assets of the partnership are still giving rise to tax depreciation deductions, is a partner’s allocable share of depreciation calculated and that ratio applied to the partnership’s total UBIA? This reading seems to make the most sense, as it would apply the exception only in cases in which it was necessary to do so because there was no other way to calculate the necessary ratio. Alternatively, is the one asset that is no longer being depreciated for tax purposes “separated from the pack,” with a partner’s share of UBIA with regard to that one asset determined separately from the determination with respect to the other assets? If the latter is the case, why did the IRS feel the need to provide a different rule for that property, as opposed to using the ratio determined in the aggregate with respect to other assets?
The Bluebook appears to clarify questions raised by the statute and the Proposed Regulations regarding a partner’s share of UBIA. Specifically, a footnote in the Bluebook (at page 29) states that:
The partner’s allocable share of unadjusted basis of qualified property is determined in the same manner as the partner’s allocable share of depreciation, regardless of whether certain items of qualified property are fully depreciated as of the close of the taxable year. The Treasury Department will provide guidance regarding the determination of a partner’s allocable share of unadjusted basis of qualified property in taxable years in which the partnership does not have a depreciation deduction.
This language suggests that a partner’s allocable share of the partnership’s depreciation is determined by looking at the aggregate of depreciation with respect to qualified property. Further, it appears to confirm that that the rule providing for the determination of a partner’s share of depreciation when the partnership does not in fact have depreciation deductions applies only when none of the qualified property owned by the partnership gives rise to depreciation deduction in the year at issue.
ESBT eligibility for a section 199A deduction
The section 199A deduction is available to taxpayers “other than a corporation,” which generally would include a trust. Further, section 199A(f)(1)(B), which is entitled “Application to trusts and estates,” provides that rules similar to the rules under former sectino 199 for the apportionment of W-2 wages apply to the apportionment of W-2 wages and the apportionment of unadjusted basis immediately after acquisition of qualified property. Finally, legislative history accompanying the enactment of section 199A states that “[t]he conference agreement provides that trusts and estates are eligible for the 20-percent deduction under the provision.”[5] Thus, it seemed relatively clear that Congress generally intended that a “trust” would be eligible for a section 199A deduction.
Nonetheless, special rules applicable to an electing small business trust (an “ESBT”—a special type of trust that owns S corporation stock) raised questions about whether the deduction was available to the trust. Specifically, section 641(c)(2)(C) provides a list of the only items taken into account in calculating the income of the S portion of the ESBT; that list does not include the section 199A deduction. Following this list, the statute specifically states that “[n]Ao deduction or credit shall be allowed for any amount not described in this paragraph, and no item described in this paragraph shall be apportioned to any beneficiary.”
Following enactment of section 199A, some practitioners speculated that the specific provisions of section 641(c)(2)(C) might prevent an ESBT from taking a section 199A deduction. However, the Proposed Regulations provided that the deduction was available to an ESBT. The Bluebook specifically addresses this issue, providing that “[a]n electing small business trust (“ESBT”) is a trust eligible for the [section 199A deduction].” It will be interesting to see if final regulations include a provision allowing an ESBT to take a section 199A deduction.
REIT dividends received through a RIC
As noted above, a section 199A deduction is also allowed for 20% of aggregate qualified REIT dividends. The Bluebook addresses the treatment of dividends paid by a regulated investment companies (RIC) that are attributable to dividends paid by a real estate investment trust (REIT) for purposes of section 199A.
The RIC rules generally contemplate that a RIC’s dividends take on the rate benefits of the RIC’s underlying income (for instance, tax-exempt interest and long-term capital gain). Although “qualified REIT dividends” (generally, ordinary REIT dividends that are not eligible for the reduced rates applicable to qualified dividend income) generally are eligible for the 20% deduction under section 199A, it was unclear whether RIC dividends would similarly be eligible to the extent attributable to those REIT dividends. Addressing this issue has been a focus of some stakeholders since the Act was enacted; however, the Proposed Regulations did not resolve the issue.
The Bluebook indicates that it is intended that, when an individual taxpayer receives dividends from a RIC that owns stock of a REIT, dividends from the RIC are treated as qualified REIT dividends to the extent attributable to qualified REIT dividends; a similar concept is intended to apply to qualified publicly traded partnership income of a RIC. The Bluebook does not say that this “RIC look-through” may require a technical correction, which could be read to suggest that this issue could be resolved in final regulations under section 199A.
The Bluebook also states that it is intended that, in order for REIT dividends to be treated as qualified REIT dividends eligible for the deduction under section 199A, holders receiving those dividends will need to satisfy a minimum holding-period requirement similar to that applicable to qualified dividend income (which requires that the stock be held for a minimum of 61 days during the 121-day period which begins 60 days before the date on which the share of stock becomes ex-dividend with respect to the dividend). The Bluebook indicates that a technical correction may be necessary to carry out this intent. Interestingly, the Proposed Regulations require the stock to be held for a minimum of 45 days, which is different than the holding-period requirement described in the Bluebook.
Computational question
The Bluebook attempts to clarify the actual computation by an individual of his or her section 199A deduction after all the information necessary for that calculation has been calculated and reported. The Bluebook notes that a technical correction may be required to properly carry out the intended mechanics of computing the section 199A deduction. Specifically, the Bluebook indicates that the intent was for the sum of the taxpayer’s positive deductible amounts from its qualified trades or businesses for the tax year to be reduced (but not below zero) by 20% of any qualified business loss (including loss carryovers) under section 199A(c)(2) when determining the taxpayer’s combined QBI amount. This treatment conflicts with the approach taken in the Proposed Regulations, which provide that negative qualified business income QBI from trades or businesses that produced negative QBI (including a loss carryover from a separate trade or business with negative QBI) reduces the positive QBI of each trade or business that produced positive QBI in proportion to the relative amount of positive QBI produced.
Section 1061
The Bluebook discussion of section 1061 makes few substantive additions or clarifications with regard to section 1061.
There has been significant discussion among practitioners and industry participants as to whether the Bluebook might highlight a possible need to enact technical corrections: (1) clarifying that section 1231 or section 1256 gain treated as capital gain should be subject to § 1061; and (2) addressing whether the related-party transfer provision was intended to override nonrecognition treatment when that provision applies. In neither situation does the Bluebook address technical corrections. In describing gain that is subject to recharacterization under section 1061, the Bluebook contains a footnote not included in the conference report[6] accompanying enactment of the Act. The Bluebook footnote states that “[a] net long-term capital gain is defined in section 1222(7) to mean the excess of long-term capital gains for the taxable year over long-term capital losses for such year.” This footnote does not appear to implicate the treatment of section 1231 or section 1256 gains, and no further elaboration beyond what was in the conference report is provided in the Bluebook with regard to the parameters of gain subject to recharacterization.
The only intended technical correction under section 1061 that is described in the Bluebook relates to the definition of “related persons” for purposes of determining when services provided by such a related person will cause a partnership interest to be treated as an “applicable partnership interest” subject to section 1061. The statute currently contains no definition of a related person for this purpose. The footnote indicates that a related person should be defined by reference to sections 267(b) and 707(b) and that a technical correction may be needed to carry out this intent.
The Bluebook does contain one significant clarification relating to the scope of the term “specified assets,” which are the investment assets that can cause section 1061 to apply to the holder of a partnership interest who provides the relevant services to a partnership holding such assets. The conference report had described a situation when a hedge fund acquired an interest in a partnership (not publicly traded or widely held) conducting an operating business and concluded that the partnership interest was a specified asset. This example had been criticized as being inconsistent with the statute, which includes as specified assets an interest in a publicly traded partnership or a partnership interest to the extent of the partnership’s proportionate interest in other specified assets. The Bluebook changes the example to describe a hedge fund that acquires an interest in a partnership that holds stocks, bonds, positions that are clearly identified hedges with respect to securities, and commodities. The Bluebook states that an interest in a partnership holding such assets would be a specified asset.
The Bluebook notes that the section 1061 exemption applicable to corporations does not apply to S corporations. In a separate discussion, the Bluebook acknowledges that Treasury and the IRS issued Notice 2018-18[7] addressing this same issue.
Section 461(l)
The Bluebook provides some insight into congressional intent in enacting the limitation on business losses in section 461(l) and indicates that technical corrections to the statutory provision may be required to achieve the intended results.
Section 461(l) generally limits the aggregate deductions attributable to trades or businesses (“business deductions”) of a taxpayer other than a corporation to the aggregate gross income or gain attributable to trades or businesses (“business income”) of the taxpayer plus a threshold amount. The threshold amount for 2018 is $250,000 (or twice that amount in the case of a joint return) and is intended to be indexed for inflation after 2018. Any business deductions in excess of the amount allowed under section 461(l) is an “excess business loss” that will be treated as a net operating loss (NOL) in a subsequent tax year.
Surprisingly, the Bluebook states that items relating to the trade or business of performance of services as an employee were not intended to be included in the section 461(l) calculation. The Bluebook includes an example of a couple in which one spouse earns a wage and the other spouse has a loss from a sole proprietorship. The example illustrates the rule that the wage income is not taken into account in determining whether the married couple has an excess business loss under section 461(l). The statement and the result in the example appear to be contrary to the longstanding position that an individual may be in the trade or business of providing services as an employee. Apparently in recognition of this, the Bluebook indicates that a technical correction may be required to carry out the described intent to exclude items attributable to the trade or business of performing services as an employee from the excess business loss computation.
In the case of a partnership or S corporation, the excess business loss limitation applies at the partner or shareholder level and the calculation includes the person’s pro rata share of items of income, gain, deduction, or loss of a partnership or S corporation. Section 461(l) does not address whether gain or loss on sale of an interest in the partnership or S corporation is taken into account to the extent of trade or business assets of the entity. Unfortunately, the Bluebook does not provide further clarification on this issue.
The Bluebook clarifies that only current year allowed business deductions and business income are intended to be included in the section 461(l) calculation. Section 461(l) is applied after section 469 (the passive activity loss rules) and other provisions that limit allowance of deductions. In addition, the Bluebook indicates that business deductions do not include the deductions under section 172 for an NOL or the qualified business income deduction under section 199A. Again, however, the Bluebook indicates that a technical correction may be required to carry out the intent to exclude these items from the calculation.
Section 1371(f)
The Bluebook attempts to provide additional clarity with regard to the application of section 1371(f) to distributions by an eligible terminated S corporation. Under the Act, an “eligible terminated S corporation” is any C corporation that: (1) was an S corporation on December 21, 2017 (i.e., the day before enactment of the Act); (2) revokes its S corporation election during the two-year period beginning December 22, 2017 (i.e., the date of enactment); and (3) has all of the same owners (and in identical proportions) on the date the S corporation election is revoked as on the date of enactment.
Newly enacted section 1371(f) provides special rules applicable to distributions by an eligible terminated S corporation after the end of its post-termination transition period. To understand the potential benefit of that rule, some background is useful. Distributions by an S corporation generally are treated as coming first from the S corporation’s accumulated adjustments account (“AAA”), which effectively measures the income of the S corporation that has been taxed to its shareholders but remains undistributed. If AAA is exhausted by the distribution, the excess distribution is treated as coming from any earnings and profits (E&P) of the corporation generated when it was a C corporation (or inherited from a C corporation under section 381). For a shareholder, distributions out of AAA generally are more favorable, as such distributions are tax-free to the extent of the shareholder’s basis in its S corporation stock and then as giving rise to capital gain for the shareholder. In contrast, distributions out of E&P are treated as dividends and taxed accordingly.
If a corporation’s S election terminates, special rules apply to distributions made by the resulting C corporation during the post-transition termination period (“PTTP”). The PTTP begins on the day after the last day of the corporation's last tax year as an S corporation and generally ends one-year after that day. A distribution of cash made by a C corporation with respect to its stock during the PTTP is applied against and reduces the shareholder’s basis in the stock to the extent the amount of the distribution does not exceed the corporation’s AAA. Thus, cash distributions by a former S corporation may be subject to the generally beneficial S corporation treatment of distributions, but only during the PTTP. After expiration of the PTTP, any distributions made by the former S corporation would be treated as coming first from the corporation’s E&P and thus taxable as a dividend to the extent thereof.
Section 1371(f) provides that a distribution of money by an eligible terminated S corporation following the PTTP is treated as coming out of the corporation’s AAA or E&P in the same ratio as the amount of the corporation’s AAA bears to the amount of the corporation’s accumulated E&P. Thus, even after expiration of the corporation’s PTTP, some portion of any money distributed by the corporation may nevertheless be treated as a reduction in the shareholder’s basis in its stock followed by a capital gain.
The Bluebook describes § 1371(f) as providing that, in the case of a distribution by an eligible terminated S corporation after the PTTP, the corporation “may elect” to allocate its AAA to the distribution and treat the distribution as chargeable to E&P and AAA in the same ratio that AAA bears to the accumulated E&P. In other words, although the language of section 1371(f) appears to provide a mandatory treatment of a distribution by an eligible terminated S corporation after the PTTP, the Bluebook indicates an intent that the provision be elective. The Bluebook notes that a technical correction may be necessary to provide for this election.
For more information, contact a tax professional with KPMG’s Washington National Tax practice:
Deborah Fields | +1 202 533 4580 | dafields@kpmg.com
Deanna Harris | +1 202 533 4156 | dwharris@kpmg.com
Stephen Giordano | +1 202 533 3535 | stephengiordano@kpmg.com
James Sowell | +1 202 533 5710 | jsowell@kpmg.com
Robert Keller | +1 504 584 1030 | rkeller@kpmg.com
Jeanne Sullivan | +1 202 533 6571 | jsullivan@kpmg.com
