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Bracewell Tax Report: Week of September 17

-- Proposed Regulations on the 20% Deduction for Qualified Business Income Provide Helpful Guidance for the Energy Industry
-- IRS Issues Proposed Regulations Providing Clarity for REIT Investors
-- House Republicans Seek to Lock In, Expand Tax Cuts With "2.0"

Proposed Regulations on Immediate Expensing Provide Greater Clarity for the Energy Industry

On August 3, 2018, the IRS and Treasury Department released proposed regulations (the Proposed Regulations) that interpret and clarify the new bonus depreciation regime under the Tax Cuts and Jobs Act (TCJA). As discussed here in greater detail, the TCJA provides businesses the opportunity to take a special depreciation deduction (Bonus Depreciation) equal to 100% of the cost of any qualified property. Qualified property generally includes depreciable property subject to the modified accelerated cost recovery system (MACRS) with a recovery period of 20 years or less that is placed in service after September 27, 2017, in the case of new property, or acquired in an arm’s length transaction after September 27, 2017, in the case of used property. The available deduction is phased out, in 20% increments, from 2023 to 2026. 

The Proposed Regulations generally have been well-received by taxpayers. Aside from being favorable to taxpayers in several respects, the Proposed Regulations provide clarity to certain aspects of the Bonus Depreciation regime, and such clarity should permit taxpayers, including those in the energy industry, to plan projects and structure transactions with greater certainty. 

First, the Proposed Regulations provide rules regarding when new property is treated as placed in service and when used property is treated as acquired. The TCJA did not provide clear guidance on these topics and, as a result, many sponsors and investors in the energy industry questioned whether they could claim Bonus Depreciation for projects that were underway when the TCJA was enacted. In the case of self-constructed property, the Proposed Regulations provide that property is eligible for Bonus Depreciation if the taxpayer began construction activities after September 27, 2017, but the property will not be eligible if such activities began before such date. Construction activities are deemed to begin when the taxpayer commences physical work of a significant nature with respect to the property, which requires a facts-and-circumstances analysis. Taxpayers, however, can take comfort that certain preliminary planning activities, such as designing, researching and securing financing, and certain preliminary physical work, such as clearing the site and test drilling, will not be viewed as construction activities under the Proposed Regulations. As a result, even if a taxpayer conducted these activities with respect to a property on or before September 27, 2017, the property still should be eligible for Bonus Depreciation when completed. Taxpayers seeking greater certainty can rely on a safe harbor providing that physical work of a significant nature does not begin until the taxpayer incurs more than 10% of the total cost of the property, not including the cost of land and the cost of any preliminary activities described above.

In the case of property acquired by the taxpayer from an unrelated party, property acquired after September 27, 2017 generally will be eligible for Bonus Depreciation, but only if the taxpayer did not enter into a binding written contract to acquire the property before this date. This limitation applies both to property that the taxpayer engages a third party to construct on its behalf and used property that the taxpayer acquires from a third party. For purposes of this rule, a contract is binding if it is enforceable under State law against the taxpayer, or its predecessor, and does not limit damages for failure to perform to a specified amount (for example, by means of a liquidated damages provision).

The Proposed Regulations provide additional guidance regarding when Bonus Depreciation is available for used property. Many taxpayers in the energy industry have been eager to avail themselves of Bonus Depreciation in this context, which provides a new opportunity for tax savings in the year of an asset acquisition. For this purpose, eligible acquisitions of used property include  direct asset acquisitions and other transactions that are treated as asset acquisitions for tax purposes (including, for example, the acquisition of all of the outstanding equity of a partnership or disregarded entity). Some taxpayers have been deterred from taking Bonus Depreciation due to a vague prohibition in the TCJA against the deduction for property “used by the taxpayer at any time prior to such acquisition.” The Proposed Regulations clarify that property is deemed to have been used by a taxpayer if the taxpayer previously owned a depreciable interest in the property. For example, a taxpayer that owns an item of depreciable equipment, sells it, and later reacquires it for cash would not be eligible for Bonus Depreciation on the reacquired equipment. By contrast, a taxpayer that leases an item of depreciable equipment, but takes no depreciation deductions, and later acquires it for cash would be eligible for Bonus Depreciation upon the acquisition. 

In addition, the Proposed Regulations provide clear guidance and examples concerning partial acquisitions of depreciable property. Under these rules, if a taxpayer owns a partial interest in depreciable property, either directly or indirectly through a partnership, and then acquires an additional interest in the same property for cash, the additional interest would be eligible for Bonus Depreciation even though the taxpayer owned, and continues to own, the first partial interest. If, however, the taxpayer owns a partial interest in a property, sells it, and later acquires a new partial interest in the same property for cash, the taxpayer would be treated as previously owning a partial depreciable interest in the property up to the amount of the initial interest, and therefore would not be eligible to take Bonus Depreciation on such portion of the interest. 

Many taxpayers were anticipating that the Proposed Regulations would apply an outer limit to the number of years a taxpayer must look back to determine whether the taxpayer, or its predecessor, would be treated as owning a depreciable interest in property. Without such a limit, a taxpayer could be required to engage in burdensome due diligence to determine whether Bonus Depreciation is available, or accept the risk that it previously owned a depreciable interest in such property. The Proposed Regulations, however, request comments on whether a limited look-back period should be included in the final regulations and, if so, how long the period should be, which has given taxpayers reason to be optimistic that the IRS and Treasury Department will consider adding this feature to the final regulations.

Finally, the Proposed Regulations provide guidance on the availability of Bonus Depreciation in connection with various partnership transactions. As expected, the Proposed Regulations confirm that a step-up in the basis of partnership property in connection with a taxpayer’s acquisition of a partnership interest, when an election under section 754 of the Code is in effect, is eligible for Bonus Depreciation, provided that the acquirer did not previously own a depreciable interest in the partnership property. This guidance confirms most practitioners’ view that Bonus Depreciation should be available regardless of whether used property is acquired directly, by means of a taxpayer’s acquisition of an undivided interest in the property, or indirectly, by means of a taxpayer’s acquisition of an interest in a partnership owning the property. 

Bonus Depreciation, however, is not available when a partnership distributes cash or property to its partners and, as a result, there is an increase in the basis of the partnership’s remaining property. The preamble to the Proposed Regulations explains that the partnership would be treated as previously owning a depreciable interest in the property, and such property neither would be original use property nor newly-acquired property for purposes of the TCJA and the Proposed Regulations. Some taxpayers also were optimistic that remedial allocations of depreciation and amortization would be eligible for Bonus Depreciation. The preamble to the Proposed Regulations, however, provides that remedial allocations are not eligible for Bonus Depreciation because the underlying partnership property would have been received by the partnership in a nontaxable transaction described in section 721 of the Code, and therefore the partnership would have a carryover basis in such property that is not eligible for Bonus Depreciation, and also because the partnership would be treated as previously owning a depreciable interest in such property.

Per the preamble to the Proposed Regulations, the Proposed Regulations may be relied upon by taxpayers until the IRS and Treasury Department issue final regulations concerning Bonus Depreciation.  Comments to the Proposed Regulations or requests for a public hearing must be submitted by October 9, 2018.

IRS Guidance on the Application of Tax Reform Amendments to Code Section 162(m)

On August 21st, the IRS issued Notice 2018-68 which provides initial guidance regarding amendments to Section 162(m) of the Internal Revenue Code (“Section 162(m)”) as provided by the 2017 Tax Cuts and Jobs Act passed in late 2017.

First impressions from Notice 2018-68:

  • Covered Employees – For purposes of the $1 million compensation deduction limit under Section 162(m), the CFO is expressly included as a Covered Employee and any individual who is a Covered Employee at any time beginning on or after January 1, 2017 is a Covered Employee for life, i.e., even after such individual’s employment is terminated, so that payments received after employment termination need to be evaluated under Section 162(m).
  • Any “written binding contract” in effect on November 2, 2017 between an employer and a Covered Employee is grandfathered from the amendments made to Section 162(m) under the 2017 Tax Cuts and Jobs Act, unless the agreement is renewed or materially modified.
    • Renewed – Any agreement which is automatically renewed unless the employer or Covered Employee gives prior notice of non-renewal is no longer grandfathered on the date of such auto-renewal.
    • Material Modification – An agreement is materially modified upon (i) an amendment increasing the amount of compensation payable under the agreement, (ii) an acceleration of a payment without discounting the payment to account for the time value of money, or (iii) a deferral of payment where the amount paid at the deferral date exceeds the original amount deferred, unless such increase is due to a reasonable rate of interest or an actual rate of return based on a predetermined  actual investment, whether or not assets associated with the deferred amount are actually invested therein.  A material modification does not include a supplemental payment that is no more than a reasonable cost-of-living increase over a prior payment made under a written binding contract (although the supplemental payment will be subject to the Section 162(m) deduction limit).
  • Written Binding Contract – It appears from an example in the Notice that agreements, plans, or plans related to agreements which allow negative discretion to reduce the payment of compensation to $0 are not  binding written contracts and are not agreements which are grandfathered.

Written comments may be submitted through November 9, 2018.  It is anticipated that comments will definitely be filed regarding the negative discretion and binding contract issue.  The Treasury Department and IRS anticipate that the guidance provided in Notice 2018-68 will be incorporated into future regulations with respect to issues addressed in the Notice and will apply to any tax year ending on or after September 10, 2018.


Tax Reform: Renewable Energy

Liam Donovan, of Bracewell’s Tax Group, tackles the topic of Renewable Energy Credits in this presentation. He will discuss the outlook for energy credits and changes in the business tax regime impacting the value of energy credits.

Focus on Finance

Michele Alexander and Ryan Davis, members of Bracewell’s Tax Group, discuss the topic of Financing Transactions, including: impact of the Interest Deduction Limit and international tax changes on the banking industry and financing transactions in this presentation.

Business Taxes

Bracewell Tax Group members Elizabeth McGinley and Steven Lorch discuss Business Taxes, including: reduced corporate rates, the qualified business income deduction and the impact of the Interest Deduction Limitation and immediate expensing.

Industry Developments

IRS issues proposed regulations on new 20 percent deduction for passthrough businesses | Internal Revenue Service

IR-2018-162, Aug. 8, 2018 - The Internal Revenue Service issued proposed regulations today for a new provision allowing many owners of sole proprietorships, partnerships, trusts and S corporations to deduct 20 percent of their qualified business income.

IRS Issues Proposed Regulations On Section 199A Deduction For Solos & Pass-through Businesses

When Congress tackled tax reform last year, the tax treatment of businesses was front and center. The new tax law permanently lowered the tax rate for corporations to 21% while rates typically remained higher for individual taxpayers (you can see the new individual tax rates here).

How Taxpayers Are Taking To Tax Reform So Far - Law360

The effects of last year's tax overhaul, the most significant since 1986, have not been as drastic as some expected. Still, taxpayers have begun to adjust and a number of significant trends are emerging, say Nickolas Gianou and Sally Thurston of Skadden Arps Slate Meagher & Flom LLP.


The Tax Cuts and Job Acts: Its Impact on the Energy Industry Webinar

Learn about the TCJA provisions that are most relevant to the the energy industry, as well as how the reform affects business taxes, financing transactions and renewable energy credits. The Tax Cuts and Jobs Act - Its Impact on the Energy Industry webinar is hosted by Bracewell's Liz McGinley, Michele Alexander, Liam Donovan, Steven Lorch and Ryan Davis.

The Lobby Shop: Tax-Mas Hangover? What's Coming Up in 2018

Welcome to 2018! After a holiday hiatus, we're back in The Lobby Shop with Liam Donovan to discuss the wrap of the tax reform bill, upcoming goals for Congress, and what the new year holds for US policy and politics.


The Lobby Shop is also available on iTunes and Google Play.

The Lobby Shop: Bonus Episode: On the 36th Day of Tax-Mas...

It's been a hectic few months in Washington, and this week was no exception. With that in mind, here is a bonus episode featuring PRG's resident tax expert Liam Donovan on the latest in tax reform and what's up next for the Conference Committee, final vote, and beyond. Tune in for a look behind the scenes and lots of seasonal analogies.


The Lobby Shop is also available on iTunes and Google Play.