January 11, 2018
Overview of New Tax Bill
This update covers a number of areas, including aspects of the tax bill most pertinent to owners, breeders, trainers and horseplayers; code changes generally applicable to all tax payers; and the behind-the-scenes politics as the NTRA advanced industry issues while preserving or blocking others.
- Greg Avioli, President & Chief Executive Officer, TOC
- Alex Waldrop, President and Chief Executive Officer, NTRA
- Greg Means, Principal, The Alpine Group
- Lauren Basel, Vice President, The Alpine Group
Click below to listen to a replay of the Teleconference.
We’re here today to help you understand the Tax Cuts and Jobs Act as it’s officially titled, that’s the federal tax overhaul that was passed in December. And more specifically, we’re going to talk about what it means for horse owners and breeders as well as trainers and horse players. Basically, the impact on the entire industry, specifically, those of you that are on the call today.
This call is presented in partnership between the TOC and the NTRA. And we’re glad to be joined by the leaders of both organizations as well as the lobbyist and tax experts that we rely on in Washington DC and who are worked on behalf of Thoroughbred Racing for many years now. We’ve got four great speakers lined up and then after their remarks we’re going to open it up for questions from all of you. So, with that to kick it off, I’d like to introduce our first speaker and that’s the President and CEO of the TOC, Mr. Greg Avioli. Greg, go ahead.
Well, I appreciate everyone joining us. I have been affiliated with the NTRA for personally for 20 years. I think one of the best things that they do is provide legislative advocacy for the industry in Washington. The TOC is a proud member of the NTRA and we very much appreciate Mr. Alex Waldrop and Greg Means giving our membership the opportunity here for stand about the tax bill and hopefully ask a few questions as well. So thanks everyone and thank you guys.
All right. Thanks, Greg and with that let’s bring in Alex Waldrop. Alex is the President and CEO of the NTRA. Alex, go ahead.
Greg, thank you very much for inviting us to be with your membership today. We’re more than happy to provide you some insight into what happened at the end of the year, last year that the tax changes that we have far reaching impacts on our industry. And fortunately today we’re able to bring two people to this call — two people who are important to the Horse Industry. Greg Means who is the Lead Lobbyist for the Alpine Group which is [?] headquartered in Washington DC and Lauren Bazel who works closely with Greg and has been part of the NTRA team now for couple of years. They are — or should be known to you as the architects, the quarterbacks if you will of the most recent changes that we received from treasure department on withholding and reporting of winning pari-mutuel wagering. They helped us craft the strategy for working not legislatively, but through the regulatory approach to achieve what in essence was 98% of what we’ve been looking for, for many years which is a relief from the under burden of reporting and withholding winning pari-mutuel wagering. And so, congratulations to Greg and Lauren, we thank you for that work.
Now it’s on, Lauren, in particular, she’s done a lot of work on the specifics of this new tax law. I want to ask Greg however to speak first to some of the overarching themes and principles that guided us, as we represented the industry over the last weeks and months, because it was a long process and we were there every day. Just with a remind to everybody with the information, we’re going to provide to you is not comprehensive in all respects of the tax bill. We urge you to consult your own tax advisor for information and decisions specifically applicable to your situation, which we are not equipped to answer today. We’re going to give you broad details. We’re going to give you things to talk about with your advisor, but also and we hope you’ll plan with your advisor and make it most of what we think on balances of very good bill for owners. With that Greg, I’m going to turn it over to you and let you take it from there.
Thank you, Alex. Thank you, Greg Avioli. Yes. And thank you Greg Avioli as well. Hello, everyone, and thanks for having us on the call today. I’m Greg Means with Alpine Group in Washington as Alex mentioned. I’m going to briefly kind of go through — kind of how we scoped out the tax reform bill and kind of what our goals were and how we interacted on it. And then my colleague Lauren Bazel will get into more details about individual provisions and some of their impacts and affects. When we first started out, tax reform has been kicked around for many years as a goal of various decision makers, policy makers, elected officials in Washington DC. There have been various draft bills over the years.
And finally there was a harmonic convergence of the planets [?] this year which allowed a comprehensive tax reform bill to be passed by the Congress and signed in the law to the President. Part of that harmonic convergence, where the use of certain senate rules and I won’t bore you with the details of all those things in reconciliation which is the process that was used. But nevertheless a process prevailed that allowed in this case for the GOP to move a comprehensive tax bill. We kind of started off first with some scoping exercises. What maybe in the bill? What could be harmful? What could be helpful? And we started talking to some of our friends upon Capitol Hill both in the house and the senate and even in the White House about some of the provisions that we had interest in, concerns about et cetera.
Similarly, we were talking to stakeholders in our industry about what was important to them. What concerns you? What are opportunities and things like that? As well as with some tax advisors that are heavily involved in the Equine Industry, so that we have a better understanding of what to be on the lookout for. Kind of our first goal through this process was, shall I call it, a Hippocratic Oath was let’s not allow or try not to allow anything into the bill that would be harmful, let’s do no harm. Let’s not have any provisions that as we have no Defcon [?] one provision.
As the bill was really getting put together, it really started to accelerate, kind of in late September then in really in October and November and to December, we were able to as different revisions were made and different proposals were offered. We had our friends on Capitol Hill that we were working with to achieve that first goal that there was no big harm or there’s no harm at all. And then, after that it was kind of looking at provisions and analyzing how they would impact on industry. And those provisions that we thought would be helpful to the industry, we joined other voices to promote those — those pieces and those provisions in the bill.
We also had to play some defense. Senator Flake of Arizona, Jeff Flake, Republican Senator from Arizona floated an amendment and this was kind of late in the process of the senate consideration of the bill. But he floated an amendment of which the language was specifically aimed at eliminating the ability to deduct gaming loses from gamming winnings. Obviously, that would not be helpful to our industry, so the contrary it would be very harmful.
So, we had to spend some time making sure that we were able to get rid of that amendment, the amendment was never offered. We were able to secure enough support and enough support from influential members. Then, Mr. Flake ultimately did not — did not pursue that. So we were playing defense as well. There is one provision that was not included in the tax bill that we would have liked to have been included. That is and some of this basically is being replaced by the expensing provisions which Lauren will talk about, but as folks on the call may recall and this started in the 2008 form bill when we were able to get language in that bill, they basically provided for uniform and accelerated appreciation of Thoroughbred at three years.
And prior to that the rules are very confusing and longer in duration and not helpful. That has always been part of the package of a dozen of other so-called tax extenders that involve other energy programs and other things including ours that would expire from year-to-year or every couple of years and we’d have to get them renewed. Those — all those provisions did expire and were not renewed in 2017. They did not address those in tax reform. We wish that they would have, but they left all of those on the side due to some opposition and due to some scoring issues, again, I won’t get into that, but as to have how — as far as dealing with how much the bill cost and there were some limitations that they had to abide by.
The good news is, is that a bill has been reintroduced by senior republicans in the senate that would carry on those extenders or extend those extenders again and it would be retroactive to the beginning of 2017. At this point we’re not sure if that bill is going to pass. There were some problems with it over in the house. We were working to get that pass. So if we — if there were something missing from tax reform for us, it was that we will leave that issue will be, you served by the expensing provisions, but those provisions do not take effect until 2018. I’m going to stop there, because I think we want to get into more of the individual provisions and let Lauren kind of walk through those. I’m happy to come back and talk about kind of how tax reform moved along and what we did. But that was kind of a general idea of how we approached it. How we worked with our stakeholders. How we worked with allies on Capitol Hill to make sure that the bill actually ended up to be good for us as there were some industries and some geographic areas on other provisions that related to the Equine Industry that did not fare so well. So with that I will kick it to Lauren to kind of talk about some of the individual provisions.
Thanks, Greg. Good afternoon, everybody. I’m Lauren Bazel with the Alpine Group. And what I want to do this afternoon is really just hit a few of the highpoints that we think are most notable for the owners and particularly the owners, you guys in California, the provisions that we think you may need to take a deeper dive into. And as Alex has said before, we did not design this to be a comprehensive look at the entire bill. And everyone is strongly encouraged to talk to their own tax advisor, because individual situations will differ and the impact of the new law on your planning and certainly on how you file for 2018 will also be different. And so, we are waiting for IRS guidance on a lot of things that will also have an impact. So please just view this as kind of the hot 100 hit list of the things you should most pay attention to when looking at tax reforms.
First of all is the reduction in overall tax rates. The individual income tax rates were reduced from a top rate of 39.6% to 37%. And the standard deduction was doubled for joint filers from $12700 to $24000. Obviously the movement of the — the strike points in the individual tax rates means that for a married tax payer filing jointly, they would hit the top marginal tax bracket at an income of taxable income of $600000. So a lot of the top rates have moved up the scale and that should give a lot of relief for people throughout. Also the top corporate rate if you have a business at the C corporation was reduced to 21%. And that also should bring a lot of relief to folks in the business space and was really kind of the main thrust of the tax bill overall was the reduction in those overall rates.
Now in order to do that, in order to lower rates they had to give up on some of the individual preference items that people were using already to bring down their tax liability and so a lot of the individual itemized deductions have been repealed with the exception of the deduction for charitable contributions. And a limited deduction for mortgage interest as well as a $10000 capped deduction for state and local taxes. The $10000 cap on the state and local tax deduction is in fact you still choose to itemize that applies to all of your state and local taxes as an individual. So property taxes, income taxes, general state and local sales taxes if you’re in a state and local sales tax state and real estate taxes.
So that actually tends to be the most controversial item that we have picked up on the individual side is the limitation on that personal state and local tax items. Obviously by doubling the standard deduction, the goal of the bill was to have fewer people have to itemize. And so, leaving even a limited deduction in there for property taxes, income taxes, charitable contributions clearly your individual situation will determine whether or not the new hire standard deduction is preferable or whether you will still continue to be an itemizer. But it’s important to note that in addition to — by limiting the personal — by limiting the other itemized deductions, things like unreimbursed business expenses all will no longer be deductible. And so, you should take a look at the list of other itemized deductions when you’re determining whether or not two itemizers take the standard deduction.
I’m going to pass over for right now of the discussion of pastors because that is a little bit complicated. But I will say that just looking through some of the either items of the bill, the capital gains tax rate has been retained as we see a maximum 20% for qualified long-term capital gains and qualified dividends. It’s also important to note that the new law did not change the affordable care act 3.5%, net investment income tax and the 0.9% additional Medicare tax that applies to higher income individuals. So those clearly still will be part of your calculation. Moving on from the rates, I want to talk a little bit about the new deduction for qualified path through business income. As I said, this is one of the most complicated areas of the new law. In essence, what the law does is it provides a 20% deduction for qualified business income from a partnership, S corporation or sole proprietorship. And so the 20% deduction combined with the top ordinary income tax rate would result in a top rate of about 29.6% for such income.
Now, here’s where things get dicey, the definitions of income and the definitions of what type of businesses qualify, still will have to be determined by regulation. In general, qualified businesses, specified service trader businesses are not allowed to take this deduction. But we don’t believe that that applies to folks in farming and owning businesses. But your tax advisor will have to know for sure and certainly regulations hopefully will clarify that. The 20% deduction is not a deduction against your adjusted growth income, but it’s a deduction reducing your taxable income. Again all these calculations need to be pretty specific and personal to you, but you will have to go through probably a complicated set of calculations at least for this current year. And then going forward on how you plan as to whether or not it is advantageous for business to stay or pass-through or convert to C corporations and the like —
The next item I wanted to just touch on is the charitable contribution donation deduction. While the provisions of the charitable contribution deduction did not change, it is still allowed as an itemized deduction as I noted earlier. The drop in the rates and the increase in the standard deduction has increasingly made people less likely to itemize, as well as the cap on the state and local deduction. So the charitable contribution deduction while it is still there clearly may not be as advantageous unless it is a very high deduction. So you would want to look at your charitable contributions and measure those against your income and certainly your other expenses and other potential deductions again when making the decision to itemize or not to itemize.
The individual alternative minimum tax was also adjusted a bit. The increased exemption amount and phase out threshold, so that you have an exemption amount increased at a $109400 for joint filers and a phase out threshold increased to a million dollar for joint filers. As a result, between that and the elimination of a state and local tax deduction, the AMT is likely to hit fewer tax payers, but again individual situations maybe different.
Flipping now to a couple of the business items that are most of interest or may be most of interest to you, the 179 small business expensing provision was made permanent and you can deduct $1 dollar of expenses up to a $2.5 million phase out for property and both of those levels are indexed for inflation.
As it was mentioned before, you’re now able to fully and immediately write off business investments through 2022. After 2022, the 100% expensing is reduced by 20% each year until it’s fully eliminated in 2027. But importantly unlike current — unlike prior law, the new act expanded this expensing deduction to include used equipment not just equipment that’s purchased by the tax payer for its first use, so that can be very meaningful especially given the elimination of like trying of like-kind exchange deferability for anything other than real estate, other than real property.
For our folks that are making purchases in their business and using and borrowing to do it, the law limits the interest deduction for businesses that have more than $25 million of growth receipts by disallowing deduction access of 30% of the businesses adjustable taxable income. And so you have a limitation on your business interest expense deduction, but there is still one there. Net operating losses are still allowed to be carried back, but only for two years not five and NOL can be carried forward indefinitely, but there is a limit on those of 80% of income. I know that there are a lot of provisions that Alex is going to speak about that have particular affect and are particular interest to the owners and the breeders.
And so I’m going to turn it over to Alex now to drill down a little bit more on the impact of some of the provisions and how they directly affect our industry. But clearly I’m available for questions and we can do that after Alex is done.
Thank you, Lauren. What I want to do first is to highlight three small business provisions. Lauren has made reference to two of them, but there are things that are generally applicable to small businesses, but specifically will be helpful to owners, farm owners, breeders and so it’s important to pay attention to these and to take — bring this to the attention of your tax advisors. Number on that hit list would be the 179 expense allowance that has been made permanent. It’s been raised to one million threshold — up to one million with a — it is phased out after a 2.5 million. This is — this would apply to horses, to equipment, to improvements to real estate all those things that you’re now doing probably if you own a farm or if you have horses in some farm, the ownership farm. So 179 expense allowance is important, it is permanent, it’s something to keep in mind when talking to your advisor.
The second and it’s related and then somewhat overlapping is the bonus depreciation which is a little different than the expensing. But the BD or the bonus depreciation is 100%, it’s not limited. So this is something you can immediately write off the cost of new end use property that would in case the ones that would include yearlings and broodmares, new end use. So we previously could only use that with respect to new — new equipment, personality horses, the yearling, male broodmares as well. Keeneland [?] was very focused on that and buyers at Keeneland here in the last four days were focused on this bonus depreciation provision. So it’s very helpful. Unfortunately it does expire after the year 2022. But it’s there and it’s important.
There’s also another overlapping provision, but yet it’s important, the property owners, the farm owners. There is accelerated depreciation it’s available for machine and equipment. It was a seven-year depreciation schedule. Now it’s been brought back to five years. That applies in specific situations if you own a farm, there may be instances where you want to depreciate it for five years certain machine or equipment. You don’t want to use it the bonus depreciation provisions. Again that’s a practice point, talk to your accountant or your lawyers they’ll know where the utilization of this is important. As an overall point here that we need to make as well. We’re talking about federal taxes. In California you have a — you are a conformity state in limited sense. By that I mean that in California the state law is typically tied to the federal law for a variety of different issues. But in California that only happens by a vote of legislature.
And as of today the legislature has not taken action on the 2018 tax reform package. Currently the conformity language in your state in California relates to January 1, 2015. So you’re going to have to keep two separate sets of tax books because of the differences between federal and state tax law. There are hearings now that are ongoing in Sacramento that you should be aware of. They’re talking about updating the tax laws to conform to the 2018 tax reform measure. We don’t know what the outcomes of those are. They’re ongoing and the results of those are uncertain, but I would urge you to engage.
Currently the three provisions that I just outlined for you, 179 expensing, bonus depreciation and accelerated depreciation for farm property, they are exempt from the current conformity language. It’s possible that they will continue to be exempt even if the conformity language comes into place affective 2018. So you need to watch those things, those are important provisions for horse owners. And I would argue strongly to keep those in the conformity package, if and when it happens in California. But until that time, at the state level, you’re going to be dealing with very different state law provisions as it relates to the expensing depreciation and the accelerated depreciation for farm property.
It’s a complicated area, you need to talk to your tax advisors, but you got the difference between the state and federal taxation, which — it’s going to take a while to fix that. Quickly as it relates to the taxation of pass-through entities, we use a lot of tax pass-through entities in horse racing. People buy horses and sometimes big horses are put into separate LLCs or other sub escorps. There are variety of different ways that they hold property. Structuring is critical. I can — there’s no way I can tell you how to structure your entity, because I don’t know it. You need to engage your tax professional quickly to talk about how you have structured your ownership interest to make sure you’re taking advantage of this pass-through taxation.
And while you’re at it consider going away pass-through, consider going back to standard C corporation, because in the old days wanted to get away from the C corporation, because it had a 35% tax rate, you had to deal with double taxation, but now a 21% the C corp maybe be the preferred rate for you to own horses. I can’t tell you if that’s the case in all cases, but it certainly worth considering. So talk to your advisors, see if there’s a possibility ask the question, “Should we go to a C corp? Can we save our overall?” To some extent that expense it depends upon how much you’re able to take advantage of the pass-through entity rules, the 20% deduction which is saved up after — in certain very profitable partnership. So be mindful of that and talk to your tax advisors about pass-through entities versus C corp, it may be a different strategy that you want to entail, to take on from here going forward.
Lauren mentioned the laws of the like-kind exchange is unfortunate, because that was utilized frequently in our industry. I know transactions that occurred where you would exchange horses and you would then affect before for gain, you do that because Thoroughbred or any horse as a two-year holding period for capital gains treatment. We caught our best to get that reduced to one like other investment assets and we were unsuccessful. So the lack of that, the continuation of the two-year depreciation — the continuation of the two-year capital gains treatment and the removal of a like-kind exchange is — it’s frustrating, it’s not the best, but be aware of that, because like-kind exchange is gone.
Lauren talked about net operating losses, they are limited but there is a two year look back for farming operation that’s important. If you’ve got a farm or if you can’t take advantage of that being able to look back and grab some taxes that you paid in prior by using a Net Operating Loss Carryback that’s very valuable and your tax advisor will tell you that. So look out for ways in which to take advantage NOLs that are going to be denied to others who don’t have farming operations. One other thing to keep in mind is the state tax exemption has been doubled. In fact more than double it’s almost 11 million for couples at this point in time. If there are family farms out there in California that are valuable and I’m certain that there are, that is going to help and do some transition planning maybe some generational planning that wasn’t possible under the prior rule. So that a state tax exemption being doubled is very good.
Last, issue that we worked out was the wagering loss deduction. If you’re a horse player you can still deduct all of your losses up into — up to the amount of your winnings. And that — that’s an important provision, because it helps to limit the amount of reportable income that horse players may incur. One thing that did occur in this bill that we tried to stop, we were not successful in stopping it. If you are professional gambler, if you’re someone in the trader business wagering on horseracing and they’re not — many people who fit that definition, but if you are one of those people prior to Jan 1, you were able to deduct not only you’re losing wagers but also any other trade or business expenses, normal businesses like lodging, transportation cost over and above the limit on your winning. And that was a — it was a good provision that some people took advantage of, that’s gone. Now the deduction is kept at winning. And so you can’t take the deductions more than your winnings. So that is — the good news is you still can deduct winnings against — losses against winning, but if you’re in the active — if you’re in the trader business you’re limited to winning. And that’s something that is — those people who do that sort of thing are very well aware of that change. It actually impacted more casino game than it did with horse racing. Nonetheless we were aware of it and we fought to push back on it.
That ends my list of things that I wanted to sort of bring your attention to. And with that I want to thank you all for your participation and for your patience in listening to this. I know some of this is pretty technical and information. But we are here to answer your questions to the extent that we can and I’m going to stop there and turn it back to Jim Mulvihill — Jim. And we’ll just start the question-and-answer period.
All right. Thank you so much, Alex, and thank you also to, Lauren. We greatly appreciate both of you kind of waiting through this bill over the last couple months and helping us also understand these most relevant points. We do have time now for some questions. Lisa the operator will tell you in a second how to signal if you do have a question for either Alex or Lauren. But, again, I do just want to remind everybody these two can’t give you a guidance on your specific taxes, but again they’re happy to help you understand the loss and the issues that you need to be looking at. So with that I’ll ask Lisa to give you the instructions on how to prompt for a question.
And we have a question from Nick Alexander. Please go ahead.
I was on an impression that the new tax law affects 2018, but earlier in that presentation, in ‘17. Did he misspeak or am I wrong?
This is, Lauren. And for the most part the provisions in the new law take affect 01:01:18. And so, but there clearly I think what you might have been referencing is Greg’s discussion of the three-year horse depreciation, which kind of is still hanging out there, as you know that provision expired at the end of 2016. So 2017 is still kind of in limbo. We’re trying to restore that provision for affective for 2017. And so, that might have been where the confusion is. And obviously, there are some provisions for example with respect to the 100% expensing provision. There is an effective date for transition rule for property acquire before September 2017. And placed in service after September 2017. So they did try to take into effect decisions that people were making while the bill was actively going through the process and those are — there are couple of instances like that where they could be 2017 effect on a particular provision.
Great. Thank you.
We have a question from Lindsay LaRoche with Highland Yard.
Hi, thank you for the overview. I’m wondering if any changes were implemented regarding the hobby law and if not any thoughts you have on the current sort of standing of that law? Thank you.
Lauren, let me speak first to that. And you can follow up.
Oh, go ahead, Alex.
The sort of answer is no. The hobby laws — the hobby law issues were remained — this notion, distinction between active and passive activity remains in the business and all of those case law is built up around that remains. The one difference that may have impact here is that there are certain instances where passive activity can get the benefit of the 20% deduction, if you’re doing business through a pass-through entity. So it’s — generally speaking all of these provisions that we discussed today are available to those who are in the active trader business of owning, racing, breeding horses. They’re not available to the passive investor with one exception and I think that’s the exception where you’re doing business to a pass-through entity and in that case there are the ability to get the — there is the ability to get the benefit for the — of the 20% deduction under those limited circumstances where that applies.
Lindsay LaRoche: Thank you.
And the only thing I would add to what Alex said is, to be very mindful as we watch for treasury guidance, implementing all of the specific provisions of the law. In particular the pass-through rules, because I think a lot of the interplay between the passive law rules and the new pass-through deduction will also be addressed potentially in regulation. So before making any major leaps one way or the other, you’re going to want to keep an eye out for treasury interpretive guidance just to be sure that you are reading the law and your advisors are reading the law the same way the treasure department is interpreting it.
Can you comment a little bit more? I was confused and your copy of statement about the California law recognizing the federal law. Are you talking about state taxes or are you talking about California recognizing federal just state tax, okay.
Yeah just state taxes. You have federal taxes. They’ll be — your federal tax forms will all be governed by the federal law, the new tax reform bill. But when you go to fill out your state taxes on your state form they will have different provisions. And many of the expensing 179 expensing, bonus depreciation, farm property accelerated depreciation will not be available to you as — on your state form as you value your state tax form.
Pending the outcome of whatever bill gets back to Sacramento.
Precisely and whatever they’re doing in Sacramento, I’d urge you guys to get involved, because they’re talking about this and I’m sure this is going to be a whole new discussion about why are we not — why are we not a conformity state across-the-board, because all these provisions are good for small business and certainly for horse industry.
Got it. Thank you.
I’d like to turn the conference back over to Mr. Mulvihill for any additional or closing comments.
All right. I just want to give thanks again to Greg Avioli, Alex Waldrop, Greg Means and Lauren Bazel for lending their expertise today and to the TOC and the NTRA for presenting this call. Thank you everybody for participating. If you have any follow up questions especially on policy, we encourage you to reach out the NTRAs Government Affairs Office.