The mess that is the tax bill just keeps getting messier

Federal income tax - internal revenue service

One expected and one surprising development as everybody digs deeper into the recently passed tax bill.

The expected: Congress gave the IRS no time at all between passing the bill and the deadlines for putting its provisions to work. So it’s not at all surprising that there’s lots of confusion about how the new law will work. Take the question of whether tax payers in high tax states, who stand to get slammed next year when they lose much of their federal income tax deduction for stat and local taxes, can prepay their 2018 local taxes so they can take the deduction on their 2017 tax return. (The bill caps those deductions at $10,000–a problem if you’re a hedge fund manager living in Greenwich, CT; an investment banker living in Manhattan; or a tech entrepreneur in Meno Park. That sound you hear is music played in sympathy on the world’s smallest violin.) On the advice of their accountants many of these tax payers have rushed to pre-pay their 2018 property taxes so they can take that deduction one last time in 2017. But on Wednesday the IRS announced that prepayments could be deducted only in limited circumstances–to be eligible taxes for 2018 had to have been assessed by local governments in 2017, for example, and it’s an unusual local government that is sending out assessments that far ahead of time.) This means that many taxpayers who have rushed to prepay aren’t actually eligible for a federal deduction. Will they demand their money back from local governments?

The unexpected: Given how much attention Congress seemed to be paying to encouraging U.S. corporations to repatriate cash held overseas (Apple’s $250 billion is, as far as I know, the biggest hoard) you’d think that the language on this provision would be clear. Nope. You see Congress also wanted to discourage U.S. companies from gaming their taxes using overseas domiciles in the future so it added a kind of alternative minimum tax for companies called the “global intangible low-taxed income” levy–known to its friends as GILTI. (Great acronym.) The provision was supposed to, everyone guesses, target earnings from patents, royalties, and licensing that companies attempt to hide by using an offshore entity to collect revenue from intellectual property. But the tax bill didn’t actually define intangible property in a way that limited the reach of GILTI. Tax lawyers are now saying that private equity partnerships that aren’t publicly traded, law and advertising partnerships with overseas offices, and many U.S. companies that make an “excess” profit from foreign plants, equipment, and inventory  could wind up paying millions or tens of millions in extra taxes.

GILTI allows corporations to take significant deductions against this new tax. Next year corporations could take a 50% deduction and get an 80% credit for foreign taxes. Tax experts say that any corporation that pays foreign taxes at a rate of 13.125% or more would be likely to escape the GILTI tax entirely (until 2026 when the GILTI rate increases.) But these deductions are only available for corporations–and not for partnerships and other pass-through entities which don’t pay foreign taxes themselves and instead pass their income along to owners. The effect, tax lawyers estimate today, is that a corporation would pay no more than $10.50 on every $100 that’s subject to GILTI, but partnerships and pass-through entities could pay as much as $37 for $100 subject to GILTI. (The new lower tax rate for passthrough entities in the tax bill only applies to domestic income.)

In other words a provision added to discourage corporations such as Apple (AAPL) and Pfizer (PFE) from stashing income overseas from patents and other intellectual property will wind up hitting partnerships and pass-through entities in law, advertising, and financial management.

And very capriciously too. Bain & Co., TPG Holdings, and Warburg Pincus are all huge investment firms–but they’re structured as private partnerships. Blackstone Group, Apollo Global Management, and the Carlyle Group, on the other hand, are publicly traded. The first group isn’t eligible for the GILTI deductions and would wind up paying much higher taxes than the second group, which is eligible for the GILTI deduction because of how those companies are structured.

Yeah, tax law just got simpler and fairer. (Although please note, I’m not crying for Bain, TPG or Warburg.)