This is the second issue in a planned series of alerts for employers on selected topics on tax reform. The series of Tax Reform Management Alerts is designed to provide an in-depth analysis of executive compensation and employee benefits aspects of the tax reform proposals and how they will impact your business.
After much last minute wrangling, Senator Mitch McConnell finally had the votes needed to pass tax reform in the Senate. Using a heavily hand-marked version, in the early hours of December 2, 2017, the Senate passed its Tax Cuts and Jobs Act (the “Senate Bill”) by the narrowest of margins with a vote of 51 to 49.
There were very few changes from the Senate Finance Committee proposal, as modified (the “Senate Proposal”), which were reported on in our last Alert. As a result, the Senate Bill, as passed, still retains several significant provisions that make important changes affecting executive compensation and employee benefits generally.
What Happens Next?
Now that both the House and Senate have passed their respective bills, both bills head to Conference to reconcile the differences. Congressional leaders have promised a reconciled bill to be on the President’s desk for signature by Christmas.
The following table updates the prior summary by providing the highlights of the Senate Bill, as passed, as compared to the current version of the House Bill.
|ISSUE||HOUSE BILL, AS PASSED||SENATE BILL, AS PASSED|
|Right to Defer Stock (Private Companies)|| Effective for stock attributable to options exercised or RSUs settled after December 31, 2017 ||Same|
|Section 162(m) $1 million Deductibility Limit|| Effective tax years beginning after 2017 with no grandfather or transition period || |
Effective tax years beginning after 2017 with limited grandfather
|New Tax on Excess Compensation Paid by Not-for-Profits|| Beginning 2018, a new tax is imposed on excess compensation paid by a tax exempt employer: ||Same, except compensation is treated as paid, and therefore subject to the excise tax, when no longer subject to a substantial risk of forfeiture|
|Repeal of Deduction for Common Executive Perks||Eliminate employer deduction for entertainment expenses, membership dues and other common perquisites, unless the individual pays tax on these benefits, effective for expenses incurred after 2017||More limited changes to current law|
|Employer-Provided Housing||Beginning in 2018, the exclusion for housing under IRC 119 will be limited to $50,000 ($25,000 for a married individual filing a joint return) and will phase out for highly compensated individuals||No change to current law|
|Moving Expenses||Eliminate employer deduction for moving expenses incurred after 2017 and the exclusion from income for qualifying moving expense reimbursements made after 2017||Same, except deduction and exclusion will remain for certain members of the armed forces on active duty (provision sunsets after 2025)|
1. Generally, an excluded employee is (1) the CEO, CFO (or individual acting in either capacity), (2) family member of CEO or CFO, (3) an employee who has been one of the four highest compensated officers for the corporation for any of the 10 preceding taxable years, or (4) a 1% owner of the corporation at any time during the 10 preceding taxable years.
2. If deferred, the deferred income is taxed upon the earliest of (1) the first date the qualified stock becomes transferable, including to the employer, (2) the date the employee first becomes an excluded employee, (3) the date the stock becomes readily tradeable on an established securities market, (4) the date five years after the first date the employee’s right to the stock becomes transferable or is not subject to a substantial risk of forfeiture, whichever is earlier (the Senate version simply provides the date that is five years after the first date the right to the stock becomes substantially vested), or (5) the date the employee revokes the deferral election.
|ISSUE||HOUSE BILL, AS PASSED||SENATE PROPOSAL|
|Individual Mandate||No change to current law||Reduces penalty for individual mandate to $0, beginning in 2019|
|Medical expense deduction (individuals may deduct unreimbursed medical expenses that exceed 10% of AGI)||Repeals deduction entirely||No change to current law|
|Archer Medicals Savings Accounts (MSAs)||Eliminates deduction for contributions to Archer MSAs but permits rollover to Health Savings Accounts (HSAs)||No change to current law|
|Qualified Transportation Fringe Benefit||Eliminates deductions for transportation fringe benefit||Eliminates deductions for transportation fringe benefit.|
|Qualified Bicycle Reimbursement||No change to current law||Repeals qualified bicycle exclusion (provision sunsets after 2025)|
|Dependent Care Assistance Programs||Exclusion repealed beginning in 2023||No change to current law|
|Adoption Assistance Program||Exclusion repealed beginning in 2018||No change to current law|
|Educational Assistance||Repeals tax exclusion under Code Section 127 (but not under Code Section 132(d)) for certain employer reimbursements of education-related expenses||No change to current law|
|ISSUE|| ||SENATE PROPOSAL|
|Hardship Withdrawals|| || |
|Deferral Limits||No change to current law|| |
|415 Contribution Limits||No change to current law|| |
|Loans||Following a plan termination or separation from service, allows participants to rollover a qualified plan loan offset amount to an eligible retirement plan by the due date (including extensions) of the participant’s federal income tax return for the year in which the offset occurs, thereby avoiding taxation on the offset amount||Same|
|Post-termination contributions||No change to current law|| |
|Catch-Ups Contributions||No change to current law||Eliminates special 403(b) and governmental 457(b) catch-up contributions; retains the general catch-up limit|
|In-Service Distributions||Age for in-service distributions from governmental plans lowered to earlier of normal retirement date or age 59 1/2||No change to current law|
|Frozen DB Plans||Frozen pension plans allowed to protect grandfathered benefits as long as grandfathered group not modified in a discriminatory manner after plan is closed to new hires||No change to current law|
Seyfarth Shaw will continue to monitor Congressional and regulatory efforts and will alert clients as new developments occur.