Each year, Congress adopts a concurrent budget resolution setting net spending, revenue and debt limits on legislation emerging from each committee during the current session. This year, the path to tax reform began on Oct. 5 when the House passed its budget resolution, followed by the Senate passing its fiscal 2018 budget on Oct. 19. On Oct. 26, the House adopted the Senate’s version of the plan, allowing tax reform to increase our deficit by a maximum of $1.5 trillion over a 10-year budget period.
The House passed H.R. 1, the “Tax Cuts and Jobs Act” on Nov. 16, and the Senate Finance Committee (SFC) approved its version on the same day. The Joint Committee on Taxation (JCT) estimated the bill would cost approximately $1.414 trillion over the 10-year period.
The bill contains reconciliation instructions that allow it to pass the Senate with a simple majority. However, any senator may challenge proposed amendments if the instructions are not met. For example, an amendment made in reconciliation must be limited to provisions having more than an incidental effect on revenue spending and may not increase projected deficits in fiscal years beyond those covered in the measure. This is the feature that is behind the eight-year sunset in the SFC’s version. We suspect the reconciliation instructions will shape current tax proposals.
Below are snapshots of specific SFC provisions affecting charitable giving, House counterparts and estimated costs. Keep in mind that a large portion of SFC’s provisions will not apply after 2025, when these changes will revert to pre-2018 law. We will conclude with the possible next steps in the legislative playbook, and some charitable planning observations.
Executive Summary: The Impact of Tax Reform on Charitable Giving
The most important item in each bill is the absence of language eliminating the charitable income tax deduction, limiting the deduction to a percentage (i.e., 28% effective rate as in President Obama’s proposals) or limiting the deduction to tax basis (rather than fair market value). These are huge considerations in reviewing this proposed legislation and should not be overlooked.
See also: Tax Reform: Effects on Insurance Industry?
Unfortunately, the overall tax restructuring of the House and Senate bills produces an unfavorable result for the charitable world, whereby charitable giving may be significantly reduced, as set forth below.
Tax Reform Snapshot
Many exemptions, deductions and credits have been eliminated, curtailed or adjusted. For example:
- The personal exemption is repealed.
- The mortgage interest deduction is significantly curtailed and is now limited to the principal residence alone. The mortgage deduction on new acquisition indebtedness is limited to $500,000 (effective Nov. 2, 2017).
- State and local income tax (or sales tax) deductions are eliminated, except for a deduction up to $10,000 for real property taxes.
- The AGI limitation for charitable contributions of cash made by individuals to public charities is increased to 60% (from the current 50%).
- The 3% limitation on itemized deductions (including the charitable deduction) – known as the “Pease limitations” – are repealed.
- Personal casualty losses are eliminated.
- Wagering losses are limited.
- Tax-preparation deductions are eliminated.
- Medical-expense deductions are eliminated.
- Alimony deductions are eliminated.
- Moving-expense deductions are eliminated.
- Medical Savings Account deductions and exclusions are eliminated.
- Employee-trade or business-expense deductions are eliminated.
- The alternate minimum tax is repealed.
- A 20% excise tax will be imposed on employees who receive more than $1 million in compensation or “excess parachute payments” (producing $3.6 billion of additional revenue over 10 years; a similar provision is in the House version).
- Charitable deduction will no longer be allowed for amounts paid in exchange for college athletic event seating rights (producing $1.9 billion of additional revenue over 10 years; there is a similar provision in the House version).
- Donee organizations will no longer be allowed to provide a contemporaneous written acknowledgement (CWA) by issuing statements for all donors on a report to the government; instead, a donor making a gift exceeding $250 will need to rely on a separate or individual CWA (this has negligible revenue effects; there is a similar provision in the House version).
- A 1.4% excise tax will be imposed on net investment income earned by private colleges and universities with at least 500 students and non-exempt use assets with last year’s value of $250,000 per full-time student (producing $2.5 billion of additional revenue over 10 years; a similar provision is in the House version).
- Name and logo royalties will be treated as unrelated business taxable income (producing $2 billion of additional revenue over 10 years; there is no House corollary provision).
- Losses from one unrelated trade will not be allowed to offset income from another unrelated trade, thus unrelated business taxable income must be separately allotted for each trade or business activity (producing $3.2 billion of additional revenue over 10 years; there is no House corollary provision).
- A flat excise tax rate of 1.4% will be imposed on investment income of private foundations (rather than the 2% or possible 1% tax rates).
- Charitable organizations sponsoring donor-advised funds (DAFs) must disclose their policies with respect to inactive DAFs and average amounts of grants.
- All charities (that is, Section 501(c)(3) organizations) will be allowed to engage in “de minimis” political activity (this is a change in the so-called “Johnson Amendment”).
- Many exclusions from income, exemptions, deductions and credits have been eliminated under the bill. For a vast majority of all Americans, the bill simplifies the income tax laws.
- Given the elimination or reduction of many deductions, exemptions and credits, a person with a home and a $400,000 – $500,000 mortgage may well have deductions that exceed the new standard deduction of $24,000. If this is the case, the only remaining income tax planning option is charitable giving. Charities should be alert to this opportunity and should promote outright and planned gifts during life with itemizers.
- With the anticipated reduction in charitable income tax deductions due to the increased standard deduction, charities should be aware of the danger of reduced funding and should enhance communicating their missions to donors who take the standard deduction.
- Under current law, taxpayers have tried to avoid treating business activities as “passive,” preferring them to be “active,” so that losses from one business activity can be offset against income earned as compensation. This trend may see a 180-degree turn.
- Almost all serious proposals in the past decade for repeal of estate and generation-skipping taxes have included a corollary: the imposition of carry-over basis at death, rather than a step-up in basis to fair market value at death. The Joint Committee on Taxation has scored the repeal of death taxes in conjunction with a carry-over basis regime as a revenue enhancer. This “omission” may be remedied in the final version of the bill, and, if this occurs, split-interest gifts will receive a significant boost.
- The world of mergers and acquisitions (M&A) will be changed radically. Sellers will want to sell assets because the corporate tax rate will be significantly reduced (from 35% down to 20%). Buyers will want to buy assets because the expensing of acquisition costs will be significantly increased. Charitable planners aware of this potential trend will be able to offer donors/clients the opportunity to avoid two levels of taxation, by suggesting charitable split-interest vehicles such as a gift annuity, pooled income fund and charitable remainder trust. In this manner, those selling a business may find they are only paying a 20% tax and are able to benefit the charity of their choice!
