IF AT FIRST YOU DON’T SUCCEED TRY, TRY AGAIN

On January 13, 2020, NJ Governor Murphy signed into law “The Pass-Through Business Alternative Income Tax Act”.  This act allows NJ “pass-through” businesses such as partnerships, sub-S corporations and sole proprietorships to elect to pay an entity-level alternative tax and provide partners, shareholders and the proprietor with a tax credit on the NJ-1040.

The new alternative tax election is effective for taxable years of the pass-through entities beginning on or after January 1, 2020.  This does not affect 2019 tax returns.

This is clearly another attempt by NJ to work around the federal $10,000 state and local tax (SALT) itemized deduction limitation enacted by the GOP Tax Act by changing a (perhaps) non-deductible individual income tax into a (hopefully) deductible state business income tax.    

The first attempt failed.  In May of 2018 Murphy signed legislation that would allow a taxpayer to donate to a charitable fund established by their municipality, county or school district. In return for their donation, the taxpayer would receive a credit on their property tax bill of up to 90 percent of the donation.  The assumption was the taxpayer could deduct the full amount of the donation as a charitable contribution on Schedule A, effectively providing a back-door deduction for the property tax.  The IRS was quick to point out that any deduction for a contribution to such a charitable fund must be reduced by the amount of the property tax credit received under the federal Trump (new synonym for “quid pro quo”) rule.  Only 10% of the donation is allowed as an itemized deduction.

I am not sure what the practical implementation of this new law on NJ tax returns will look like.  While NJ partnerships and S-corporations already file a tax form on which they can elect to pay the tax, will sole proprietors who file a federal Schedule C now have to file a new separate NJ business tax return to pay the tax? 

From what I have found in an initial online search the tax the pass-through entity will pay is -

1) 5.525% tax on the first $250,000 of distributive proceeds  

2) 6.37% tax on distributive proceeds between $250,000 and $1M  
3) 8.97% tax on distributive proceeds between $1M and $3M
4) 10.75% tax on distributive proceeds over $3M.

The above tax rates mirror the higher end of the current NJ tax rates for Form NJ-1040. 

I will be interested to see how the IRS responds to this new attempt to help NJ taxpayers evade federal income tax.  It is clear what NJ is doing, and the Service will certainly understand this.  I would think in order for this scheme to work NJ would have to make the entity-level tax mandatory and not optional and exempt from taxation on the NJ-1040 the pass-through income from NJ-based partnerships, sub-S corporations and net profits from business (federal Schedule C).

I will certainly to have more to say about this new tax scheme after the tax filing season when more information becomes available.

TTFN