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TCJA Update – Pass-Through Deduction Regulations – Late July

TCJA Update - Pass-Through Deduction Regulations - Delayed Until Late July

Administration officials are now saying that the new and desperately needed rules under IRC Section 199A will not be issued until late July. This author will go out on a substantial limb and tell you not to hold your breath -- a Labor Day deadline is more likely.  The Treasury tax wonks are inundated with regulatory projects prompted by the TCJA provisions.

IRC Section 199A provides, in very general terms, for a 20% deduction of certain business income earned by pass-through entities and sole proprietorships (such as partnerships).  The new deduction, with limited exception, does not apply to certain businesses that can be described as service businesses (such as, attorneys and accountants). While the rules themselves will be complex and will affect a large proportion of U.S. business taxpayers, tax regulation promulgation is now a bit more tricky than in the past.  Under an agreement reached with the Trump administration and the Office of Management and Budget (OMB), the OMB now gets a crack at reviewing regulations issued by the U.S. Treasury before the rules are released into the public domain. While the OMB process is supposed to be fairly speedy (not over 10 days without the Treasury secretary's consent) there are a number of perils that await the new regulations.

First, the OMB is unfortunately not at all staffed with tax professionals who are likely to have a deep understanding of the new tax law, prior law, still-existing law, and all of the nitty gritty details of a hundred other tax provisions that must be (or should be) properly considered when Treasury issues regulations on a given tax statute.  It has been reported that the OMB has the help-wanted sign out for tax lawyers. Second, and perhaps of more concern, the OMB review, no matter their technical prowess with tax laws, provides another bite-at-the-apple for taxpayers and their lobbyists to inject their wish lists into the regulatory process.  Notwithstanding the harm that could bring to sound tax policy (assuming that still matters), the unpredictability of the new OMB process adds another layer of intrigue to a process that really doesn't need any.

The Code Section 199A regulations are so very critical because the statute itself is unclear as to whom it applies and, if it does apply to a particular taxpayer, it is unclear as to how it applies in many respects.  There is no question that hundreds of thousands of taxpayers are as of today not certain whether the new deduction applies to them.  The new regulations will undoubtedly have to leave some issues for later consideration.  One subset of provisions unlikely to be left for another day, however, are anti-abuse rules aimed at preventing gaming and abuse of the new law (alas, tax lawyers will do what tax lawyers do given "gray" areas of the law and those games have begun).

Stay tuned.


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