Monday, June 11, 2018


The new “Section 199a” deduction – 20% of pass-through business income - created by the GOP Tax Act makes absolutely no sense.

Why does it exist?  The Act reduces the tax rate on regular “C” corporations to 21%. Pass-through businesses – sole proprietors filing Schedule C, partnerships and sub-S corporations – had paid tax on net business income at “ordinary income” rates, as much as 37% under the new rate schedule.  So to make the reduced C corporation rate more palatable Congress felt it had to throw pass-through businesses a bone.

But are C corporation net profits really taxed at only 21%.  A corporation will pay 21% tax on its profits.  When the profits are paid out to shareholders as dividends the individual shareholders include these dividends as income on their personal tax returns.  This is the classic “double-taxation” of corporate dividends.  Qualified dividends are taxed at a lower rate – 0%, 15% or 20%.  Plus, dividends, being investment income, can also be subject to the Obamacare 3.8% surtax.

A taxpayer in the 22% bracket will pay 15% tax on the qualified dividends received.  So, the corporate income represented by the dividend distribution is actually taxed at 36% - 21% and 15%.  If the same taxpayer received the dividend income as a pass-through from a sub-S corporation the tax on $100 would be $18 ($100 - $20 = $80 x 22% = $17.60), or only 18% - half the effective tax on C corporation income.

A person in the top tax bracket would pay 23.8% tax on the dividends – the 20% capital gain rate and the 3.8% Obamacare surtax.  So, the corporate profit would be effectively taxed at 44.8%.  Sub-s pass through income could be taxed at as much as 40.8% (the 20% deduction may not be available).   

Here is what I say should be done.

C corporations should be allowed to claim a tax deduction for “dividends paid” and only pay corporate income tax on the actual “retained” earnings.  Dividends would continue to be taxed on the income tax returns of shareholders.  But since there is no longer any “double taxation” there would no longer be a need for a special tax rate on dividends.  There would be no 20% Section 199a deduction.  So, monies passed through to business owners – either as corporate dividends or pass through business income – would all be taxed at ordinary income rates. 

The inequity in the treatment of corporate income and self-employment income from sole proprietorships and partnerships exists not in the income tax treatment but with the application of the FICA-equivalent “self-employment tax”.  A person who owns a corporation pays himself/herself a salary, subject to FICA tax. The employee pays half the tax and the employer pays half the tax.  The net profits distributed to the owner is in the form of dividends, or sub-S pass through income, which is not subject to self-employment tax.  Employee benefits, such as health insurance premiums and employer pension plan contributions, are not subject to FICA tax.

A sole proprietor and general partner pays self-employment tax – the equivalent of both halves of the FICA tax – on the total amount of “net earnings from self-employment” which is the total net profit reported on Schedule C or the total business income pass through for the general partner, adjusted for half the s-e tax, before any deductions for health insurance premiums or pension contributions.  A large portion of the net earnings from self-employment for sole proprietors and general partners is “wage-equivalent”, but a portion is also “dividend-equivalent”.  

First, health insurance premiums and pension contributions (with the possible exception of the equivalent of 401(k) deferrals) for the self-employed person should be allowed as a deduction in determining net earnings from self-employment.  And only a percentage of the net earnings from self-employment, the percentage representing wage-equivalent earnings, should be subject to the self-employment tax.  It is truly difficult to determine the appropriate allocation of net income to wage earnings and return on investment dividends.  Perhaps using an arbitrary allocation, like 70% wage-equivalent and 30% dividend-equivalent, is the simplest way to go. 

FYI I would also do away with ALL industry-specific loopholes, deductions and credits for ALL business activities, basically taxing ALL business entities on net book profit.  

What do you think?


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