By Steven J. Oshins, Esq., AEP (Distinguished)

The greatest opportunity business owners received from the Trump Tax Act is the new IRC 199A pass-thru business deduction. This deduction allows certain taxpayers to deduct 20% of their Qualified Business Income.

However, not every taxpayer can receive this deduction, so estate planners have a huge opportunity to exploit the new statute by educating themselves with the details of the new statute.

For a married couple with taxable income of no more than $315,000 (adjusted for inflation) and for an unmarried individual with taxable income of no more than $157,500 (adjusted for inflation), there are minimal rules and the 20% federal income tax deduction is available. There is a phase-out of the deduction from $315,000 to $415,000 (adjusted for inflation) for married taxpayers and from $157,500 to $207,500 (adjusted for inflation) for unmarried taxpayers. These figures are for total income, not just based on Qualified Business Income.

For a Specified Service Business, unfortunately no IRC 199A deduction is available for owners whose taxable income exceeds the dollar amounts in the foregoing paragraph. A specified service trade or business means 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, including investing and investment management, trading, or dealing in securities, partnership interests, or commodities, and any trade or business where the principal asset of such trade or business is the reputation or skill of one or more of its employees.

However, for a business that is not considered a Specified Service Business, an IRC 199A deduction is available for owners whose taxable income exceeds the dollar amounts outlined above. However, it’s limited to the greater of (a) 50% of W-2 wages or (b) 25% of W-2 wages plus 2.5% of Qualified Property (certain depreciable property such as buildings and equipment).

Non-Specified Service Business: Choice of Entity Example

Assume $1,000,000 of Qualified Business Income (QBI) for this tax year and that the business has no Qualified Property. Let’s compare three choices of business entity: Sole Proprietorship, Partnership and S Corporation.

Sole Proprietorship: $1,000,000 QBI; $0 W-2 wages. Therefore, $0 QBI deduction

Partnership: $1,000,000 QBI; $0 W-2 wages. Therefore, $0 QBI deduction

S Corporation: Assume $200,000 wages. Therefore, $800,000 QBI. Does this mean $160,000 QBI deduction (calculated as 20% of $800,000)? Unfortunately, no. If we apply the W-2 wage test which is 50% of $200,000, the QBI is limited to $100,000 which is still a better result than using a Sole Proprietorship or Partnership.

Applying the 28.57% Magical W-2 Formula

The ideal sweet spot for percentage of W-2 wages versus overall income is 28.57%. [To be more specific, 28.571428571% which is computed by dividing 3.5 into 100.]

Looking at the above Example, assuming that we increase the W-2 wages using the Magical W-2 Formula to 28.57% of the $1,000,000. Therefore, the W-2 wages are $285,700 and the Qualified Business Income is therefore reduced to $714,300.

$285,700 * 50% = $142,500
$714,300 * 20% = $142,860

Therefore, after applying the Magical W-2 Formula, by increasing W-2 wages, we have discovered the sweet spot to maximize the IRC 199A deduction at $142,500!

Summary

IRC 199A potentially gives business owners a very large new income tax deduction. However, as described in this article, the choice of entity can have a big impact over this deduction and the 28.57% Magical W-2 Formula can perfect the extent of this deduction.

RELATED EDUCATION

The Ultimate Estate Planner has a number of educational programs related to the Tax Reform that you may be interested in.

• What Every Advisor Needs to Know About Tax Reform for 2018 Planning & Beyond
• Planning for Professional Practices & Other Business Entities Under the Tax Reform Bill
• Estate Planning After Tax Reform
• Tax Planning for Real Estate Under the Tax Reform Bill

Other educational programs and products available from Steve Oshins:

• The Hybrid DAPT
• Asset Protection Other than DAPTs: Overlooked Alternatives That Will Grab Your Clients’ Attention!
• The NING Trust: Saving Significant State Income Taxes for Your Clients in High State Income Tax Jurisdictions
• Advanced-Level Estate Planning Sales & Marketing Kits
• Steve’s FREE State Rankings Charts

ABOUT THE AUTHOR

Steven J. Oshins, Esq., AEP (Distinguished) is a member of the Law Offices of Oshins & Associates, LLC in Las Vegas, Nevada. He was inducted into the NAEPC Estate Planning Hall of Fame® in 2011. He was named one of the 24 “Elite Estate Planning Attorneys” and the “Top Estate Planning Attorney of 2018” by The Wealth Advisor. Steve was also named one of the Top 100 Attorneys in Worth and is listed in The Best Lawyers in America® which also named him Las Vegas Trusts and Estates Lawyer of the Year in 2012, 2015 and 2018 and Tax Law Lawyer of the Year in 2016 and 2020.  He can be reached at 702-341-6000, ext. 2, at soshins@oshins.com or at his firm’s website, www.oshins.com.