On November 9, 2020, the IRS issued Notice 2020-75 announcing that the Treasury and IRS plan to issue proposed regulations to clarify that state and local income taxes imposed on and paid by partnerships and S corporations are not subject to the $10,000 SALT cap for their partners or shareholders.
This regulation will provide clarity that such taxes are fully deductible in computing a passthrough’s non-separately stated income or loss, and therefore will not impact the owner’s SALT deduction limitation. The taxpayer-friendly notice appears to endorse the workarounds to the SALT cap that have already been adopted by several states.
Previous SALT Legislative Efforts
The Tax Cuts and Jobs Act (TCJA), enacted on December 22, 2017, limited an individual’s deduction for state and local taxes paid during the calendar year to $10,000 (SALT Cap) for tax years beginning after December 31, 2017 and before January 1, 2026.
The TCJA importantly did not limit the SALT deduction for business entities but did put businesses structured as passthrough entities at a disadvantage. State and local income taxes on the income of partnerships and S corporations are generally not paid at the entity level, but rather by the individual owner, and are therefore subject to the $10,000 SALT cap.
Notice 2020-75 Implications
This latest guidance would appear to attempt to put pass-through entity owners and C-Corp owners on an equal footing with respect to the deduction for state and local taxes and allow pass-through owners to largely avoid the SALT cap on their non-separately stated pass-through income.
Additional states may look at imposing entity-level income taxes on passthroughs to capture this new SALT deduction benefit. Owners of partnerships and S corporations are advised to monitor developments in the states in which they conduct business.
The success of these “workarounds” will depend on states cooperating by structuring regimes to avoid the double counting of income that could disadvantage nonresident owners. States imposing an entity-level tax on passthroughs need to provide a credit or exclusion for similar entity-level taxes imposed by other states. For example, Georgia law currently allows residents to exclude partnership income that is subject to an entity-level tax in another state.
Bennett Thrasher will continue to monitor developments related to Notice 2020-75 and will communicate any significant changes that will impact our clients. For further questions or guidance regarding your state and local taxes, please contact your BT advisor by calling 770.396.2200.