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PATH Act: New Tax Rules for Businesses for 2015 Returns, 2016 Planning

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(This article originally appeared on ALM sister publication, New York Law Journal.)

The Protecting Americans from Tax Hikes (PATH) Act, which was signed into law on Dec. 18, 2015, contains more than 100 tax provisions. The law makes permanent more than 20 provisions that had expired at the end of 2014. It also extends other provisions through 2019, or for two years (2015 and 2016). According to the Joint Committee on Taxation, the extenders are projected to cost the government $628 billion over 10 years. The extenders and other provisions in the PATH Act impact individuals and businesses. Here is a roundup of the key provisions for businesses and how they affect 2015 returns as well as tax planning for 2016.


A number of business deductions have been made permanent or extended, as indicated below:

Write-offs for equipment purchases. Two important deduction options apply to purchases of equipment and machinery:

• Sec. 179 deduction. The $500,000 deduction limit and the $2 million cap on equipment purchases have been made permanent. (Under 26 USC §179, such costs may be deducted as expenses and are not required to be capitalized and depreciated.) They had been set to revert to $25,000, and $200,000, respectively, in 2015. Starting in 2016, the dollar amounts can be adjusted for inflation. Also made permanent is the treatment of off-the-shelf software as qualifying for a Sec. 179 deduction as well as the option to make or revoke a Sec. 179 election without IRS consent.

• Bonus depreciation. This deduction, which applies to new (not pre-owned) property, has been extended through 2019. It allows for a 50 percent additional first year depreciation deduction. However, the 50 percent write-off for the cost of qualified property applies only for 2015, 2016, and 2017. In 2018, the deduction decreases to 40 percent; in 2019 it is 30 percent.

Write-offs for leasehold, restaurant, and retail improvements. Several tax breaks relate to write-offs for these improvements:

• Sec. 179 deduction. Such improvements qualify for the Sec. 179 deduction. However, for 2015, there is a $250,000 cap. Starting in 2016, the cap is removed.

• Bonus depreciation. Qualified leasehold improvements qualify for the allowable percentage of bonus depreciation in 2015 (Code Sec. 168(k)). For 2016 through 2019, bonus depreciation applies to qualified improvements, which can include restaurant or retail improvements as well as leasehold improvements, and there is no longer a requirement that the improvement be placed in service more than three years after the building was first placed in service. The 50 percent percentage applies for 2015, 2016, and 2017. The percentage decreases to 40 percent in 2018 and 2019.

• Fifteen-year recovery period. Any amounts for improvements not deducted using the Sec. 179 deduction or bonus depreciation can be recovered using straight line depreciation over a 15-year recovery period (Code Sec. 168). This recovery period has been made permanent. (A recovery period is time frame set by law over which depreciation is claimed.)

Other Write-Off Rules

• Film and television production costs. These costs in 2015 and 2016 can be expensed up to $15 million, a tax break that benefits small producers (Code Sec. 181). For 2016, this deduction rule applies to theater productions as well.

• Sports complexes. A seven-year recovery period applies to motorsports entertainment complexes (Code Sec. 168).

• Race horses. A three-year recovery period for race horses applies through 2016 (Code Sec. 168).

Charitable contributions. Corporations can deduct their contributions up to 10 percent of taxable income. Contributions by pass-through entities are claimed by owners on their personal returns, subject to their adjusted gross income limits.

• Conservation easements. The enhanced deduction limit on conservation easements is permanent (Code Sec. 170(b)). Effectively, the deduction is up to 50 percent of adjusted gross income (instead of the usual 30 percent cap on donations of appreciated property). Farmers and ranchers have a 100 percent limit. Also, the carryover period for deductions that cannot be fully used in the current year because of the AGI cap is 15 years (instead of the usual five-year carryover). Starting in 2016, the special rules apply to conservation easements by corporations under the Alaska Native Claims Settlement Act, 43 USC Chapter 33.

• Donations of food inventory. Businesses can take an enhanced charitable deduction for donations of their food inventory (Code Sec. 170). This rule has been made permanent.


Tax credits usually are used to reduce income tax liability on a dollar-for-dollar basis. Some credits have been extended temporarily; others have become permanent.

Research credit. The 20 percent credit for increasing research expenditures, which was first introduced into the law in 1981, has been made permanent (Code Secs. 38 and 41). This credit had been subject to numerous expirations and extensions. With permanency, businesses can plan ahead for their research activities.

Starting in 2016, small businesses can use up to $250,000 of the research credit as an offset to the employer’s Social Security taxes, rather than as an offset to income tax liability. Small businesses for this purpose are defined as those with gross receipts for the taxable year of less than $5 million and no gross receipts for any year before the five taxable year period ending with the current taxable year. This break helps small technology businesses with little or no revenue benefit tax-wise from their research activities.

Employment-related credits. There are several employment-related credits that have been extended:

• Work opportunity credit has been extended through 2019 (Code Secs. 51 and 52). Starting in 2016, the credit applies for hiring the long-term unemployed (those unemployed for at least 27 weeks).

• Empowerment zone employment credit has been extended for 2015 and 2016 (Code Sec. 1396).

• Indian employment credit has been extended for 2015 and 2016 (Code Sec. 45A).

• Credit for wage differential payments to reservists called to active duty has been made permanent (Code Sec. 45P).

S Corporations

Two key tax rules affecting S corporations and their shareholders have been made permanent.

Basis adjustment for charitable donations. When S corporations donate appreciated property, shareholders must reduce their basis in S corporation stock only by their share of the corporation’s adjusted basis in the property (Code Sec. 1367). This is so even though their share of the charitable contribution deduction is based on the fair market value of the property. Because a shareholder’s deduction for losses that pass through are limited to his/her share of basis in stock and debt, this favorable basis adjustment rule allows for a greater loss deduction by a shareholder when the corporation has a bad year.

Built-in gains period. When a C corporation elects S corporation status, any gain in appreciated property is taxed to the S corporation if the property is disposed of within a set period. Originally, the built-in gains period had been 10 years. It has been reduced to five years (Code Sec. 1374).

Energy-Related Provisions

Various energy-related provisions have been extended temporarily only for 2015 and 2016.

Energy-efficient buildings. The deduction for commercial buildings that achieve certain energy standards is of $1.80 per square foot (Code Sec. 179D).

Electric motorcycles. There is a 10 percent credit for the cost of buying an electric motorcycle (Code Sec. 30D). The credit is capped at $2,500. However, the previous credit for a three-wheeled vehicle which expired at the end of 2014 has not been extended.

Energy-efficient homes. This credit equals $1,000 in the case of a new home that meets a 30 percent standard for efficiency; it is $2,000 in the case of a new home that meets a 50 percent standard (Code Sec. 45L). Only manufactured homes are eligible for the $1,000 credit.

Alternative fuel refueling property. There is a credit of qualified property up to 30 percent of cost, up to set dollar limits (Code Sec. 30C). The basis of the property is reduced by the amount of the credit. No credit can be claimed if the cost is expensed under Code Sec. 179.

Other Tax Changes

Various other tax rules have changed. Some changes are temporary; others are permanent.

Parity for transportation fringe benefits. The amount of the exclusion is the same for employer-paid free parking, monthly transit passes, and van pooling (Code Sec. 132(f)). For 2015, the exclusion amount for these transportation fringe benefits is $250 per month (it had been only $130 for transit passes and van pooling). For 2016, the monthly cap is $255 (Rev. Proc. 2015-53, IRB 2015-44, 615).

Because of the reinstatement of parity, the IRS has provided guidance to employers on how to handle overwithholding (Notice 2016-2, IRB 2016-2, 265). For 2015, employers must reduce the taxable wages of affected employees, as reported on Forms 941 and W-2 and any equivalent forms, by the amount of any excess transit benefits. An employer has a duty to assure that its employees’ rights to recover overcollected taxes are protected by repaying or reimbursing overcollected amounts. Alternatively, an employer may obtain the employee’s consent to the filing of the refund claim. No refund to the employer is allowed for the overpayment of withheld income tax which the employer deducted or withheld from an employee. An employer can correct overpayments by filing Form 941-X, Adjusted Employer’s QUARTERLY Federal Tax Return or Claim for Refund.

Exclusion for small business stock. Section 1202 stock, which can be issued by a qualified small business, enjoys special tax treatment. A qualified small business for this purpose is a C corporation that is in retail, wholesale, manufacturing, or technology, and that meets certain other conditions. Under the new law, if the stock is held more than five years, all of the gain on the sale of the stock is excludable from gross income. The 100% exclusion had been set to revert to the old 50 percent exclusion, but the 100 percent exclusion has been made permanent.

Excise tax on medical devices. The 2.3 percent excise tax imposed by the Affordable Care Act on manufacturers or importers of medical devices has been suspended for 2016 and 2017 (Code Sec. 4191). It is set to reapply in 2018 unless Congress again changes this rule.

Transmittals for W-2s and 1099s. Starting with reporting for wages and non-employee compensation in 2016 (i.e., W-2s and 1099-MISCs filed in 2017), the transmittals to the Social Security Administration (for W-2s) and to the IRS (for 1099s) are due by the same date as they are furnished to workers (Code Secs. 6071 and 6402). Thus, in 2017, the deadline is Jan. 31, 2017.

De minimis safe harbor for errors on information returns. Employers do not have to file corrected information returns if the error is de minimis (Code Secs. 6721 and 6722). An error for any single amount not exceeding $100 (or $25 in the case of withholding or backup withholding) need not be corrected.


The changes made by the PATH Act allow businesses to do multi-year tax planning. However, Speaker of the House Paul Ryan is seeking comprehensive tax reform before the November election. This could dramatically change the “permanent” rules just enacted. Toward this end, on Feb. 4, 2016, he appointed Rep. Kevin Brady, chairman of the House Ways and Means Committee, to head up a six-member group “tasked with developing a pro-growth agenda” with the ultimate goal of developing a new Tax Code. The rules that have been made permanent may not be so permanent.

(This article originally appeared on ALM sister publication, New York Law Journal.)

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