William Delaney, EA
Westwood, MA
Wait a minute…we all know that our personal income tax liability for pass-through income is paid on RI Form 1040, and it isn’t the tax liability of our business (pass-through) entity. They can’t pay our tax without creating taxable income for us due to the payment being classified as a distribution. The corporation or other entity isn’t our personal piggy bank! We all know that---or do we? Shall we continue?
If you attended our splendid state update virtual seminar on Jan. 6 and 7, you heard our speaker from Rhode Island’s Division of Taxation, Leo Lebeuf illustrate and explain the inner workings of making a §44-11-2.3 election. Under this RI General Law enacted in
2019, a pass-through entity (defined under statute as any of the following---S corp.,
general partnership, limited partnership, limited liability partnership, a “member” of an
LLC, a beneficiary of a trust and last, but by no means least, a sole proprietor) may
“elect” to pay the “owner’s” income tax on the entity’s “net income” at a fixed rate of
5.99% .
An owner is defined as an S corporation shareholder;, a partner in one of the specified
types of partnerships; a member of an LLC; a trust beneficiary: or a sole proprietor.
Net income is defined as income reported on Schedule C (sole proprietor) or Schedule
E (other entity types) after removing any Sec. 179 depreciation.
Fine, so what is the point? You write a check out of your sole proprietorship account
(assuming that you have an account specific to your Schedule C activity) or you write
the check out of an account linked to one of the other defined pass-through entities.
How does that become a business deduction on the applicable federal form and the
applicable state form? On this, the statute is silent (do you hear any alarm bells going
off?). Instead, we are referred to IRS Notice 2020-75 (11/10/2020) which the Division of
Taxation apparently believes has somehow given federal approval to the classification
of this type of entity payment as a deductible tax on the federal entity return (yes, that
includes Schedule C). Read on, and let’s see if this interpretation is correct…
The stated purpose of the Notice is to announce that the Treasury and the IRS
“…intend to issue proposed regulations to clarify that State and local income taxes
imposed on and paid by a partnership or an S corporation on its income are
allowed as a deduction by the partnership or S corporation in computing its non-
separately stated taxable income or loss for the taxable year of payment….
The taxable year of payment was interpreted by the RI presenter as meaning the year in
which payment was made; I believe that the correct interpretation of this language
would be the taxable year for which the payment was intended (such as an ES#4, paid
in Jan. 2021, for tax year 2020).
Note also that the purpose statement mentions only two entities, while the RI pass-
through entity also includes a member of an LLC; a beneficiary of a trust; a sole
proprietor. This would cause me to think that the state’s interpretation of the Notice as
covering their expanded definition of a pass-through entity is not correct.
However, does the Notice at least bless the concept that the payments made by either
an S corporation or one of the several partnerships would be interpreted as an income
tax imposed on the entity? It seems to hinge upon a statement in section .02(2) under
Background.
“In enacting section 164(b)(6) [of the Internal Revenue Code], Congress provided that
‘taxes imposed at the entity level, such as a business tax imposed on pass-through
entities, that are reflected in a partner’s or S corporation shareholder’s distributive or
pro-rata share of income or loss on a Schedule K-1 (or similar form) will continue to
reduce such partner’s or shareholder’s distributive or pro-rata share of income as under
present law.’ H.R. Rep No. 115-466, at 260n 172 (2017).
What is §164(b)(6)? It’s the recently enacted SALT limitation. So, if you haven’t
already guessed, it is a back-door approach by RI to get around the SALT limitation.
Will it work…
First, we see how (if it works) the State of RI legislature is thinking. If it is paid by the
entity, and meets the definition of an “entity tax under this subsection” [see §(b)(2) of the
law], that makes it a tax on the “net income” of the entity which is then allowed as a
deduction on the entity’s tax return. If the entity deducts it, that reduces the pass-
through income on the owner’s personal income tax return. So, you can deduct your
personal income tax (if paid by the entity) as an expense against your reportable pass-
through income (the entity adjusts your income downward). You can, according to the
RI legislature, also deduct it directly on your sole proprietorship tax return (so long as it
is not paid from a non-business checking account or credit card, etc.).
After setting forth this interpretation of what is permitted under the federal tax code,
what did RI tell us regarding the state income tax return? First, the payment by the
entity is claimed as a credit against tax liability on the owner’s personal income tax
return. This, effectively, credits the owner as having paid the tax from his/her own
funds. [§(c)(1) of the law]. Second, the entity must reverse the deduction for state tax
paid so that the state version of the owner’s K-1 does not receive the benefit of a state
tax paid deduction. [§(c)(2) of the law]. In other words, the state K-1 is grossed up.
Now let’s return to the federal Notice and read under section 3. Forthcoming
Proposed Regulations. Under .02(1) we find: “…the term ‘Specified Income Tax
Payment’ means any amount paid by a partnership or an S corporation to a State, a
political subdivision of a State…to satisfy its liability for income taxes imposed…on the
partnership or S corporation. Let’s think about this wording…
There must be an income tax liability imposed on the entity. Under the RI statute which
we are reviewing, there is no “income taxes imposed” liability, because the statute
makes no mention of a new tax. In fact, the statute is not even triggered unless an
entity “elects” to make a payment. If the entity does not make the election, the state
doesn’t swoop in and impose the flat rate tax of 5.99%; the state does nothing. You just
file a state tax return without all of the rigmarole. So, is Mr. Lebeuf correct when he
says---why not make the election?
Specified Income Tax Payment (see second preceding paragraph – above) is further
explained/defined…”Thus, this definition solely includes income taxes described in
section 164(b)(2) for which a deduction by a partnership is not disallowed under
§703)a)(2)(B), [state and local taxes], and such income taxes for which a deduction by
an S corporation is not disallowed under §1363(b)(2) [not applicable to our situation].
Now for the punch line…the Notice then goes on to say “…without regard to whether
the imposition of and liability for the income tax is the result of an election by the
entity or whether the partners or shareholders receive a partial or full deduction,
exclusion, credit, or other tax benefit that is based on their share of the amount
paid by the partnership or the S corporation to satisfy its income tax
liability…and which reduces the partners’ or shareholders’ own individual income
tax liabilities…”
So, does it matter if the tax is only self-imposed by election and not uniformly imposed
whether or not you do anything? Apparently it does not, and your Editor now believes
that the position of the RI Division of Taxation is a correct interpretation of the Notice.
Took me a long time to reach this conclusion. One caveat, however. There is no
federal authority for applying the Notice to sole proprietors, trusts, and single member
LLCs which default to disregarded entity tax status. To this extent, I disagree with the
RI Division of Taxation. I don’t see it in the Notice or in the federal tax code.
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