Personal Finance

One way to play the new tax law: Start an LLC

Key Points
  • Small businesses may be able to snag a 20 percent deduction.
  • You may get this break if your taxable income is below $157,500 if single or $315,000 if married.
  • Entrepreneurs may push the envelope on the new tax law to maximize savings.
Senate Majority Leader Mitch McConnell, R-Ky., flanked by SBA Administrator Linda McMahon (left) and Sen. Jim Risch, R-Idaho, speaks at an event in the Capitol with small-business advocates to highlight the importance of tax reform to America's small businesses on Nov. 28, 2017.
Bill Clark | CQ Roll Call | Getty Images

Spurred by ambiguities in the new tax law, accountants are coming up with novel strategies to help entrepreneurs slash their taxes.

One of the most notable provisions in the Tax Cuts and Jobs Act is a 20 percent deduction for qualified business income from so-called pass-through entities, including S corporations and limited liability companies.

Your taxable income must be below $157,500 if you're single or $315,000 if married and filing jointly, in order to qualify for the full deduction.

Beyond those income caps, however, the law places limits on who can take the break. For instance, entrepreneurs with "service businesses" — including doctors and lawyers — may not be able to grab the deduction if their income is too high.

That's where accountants and entrepreneurs are getting creative, finding ways to help businesses maximize this tax break.

For now, it's the Wild West of tax planning, as the IRS hasn't given much guidance on how to interpret the new law.

Small business optimism remains at historically high levels
Small business optimism remains at historically high levels

There's also an element of risk: Should the IRS issue rules to bar certain tactics, entrepreneurs may have to unravel their tax planning.

"You could do anything right now that is within the law," said Jonah Gruda, a certified public accountant and partner at Mazars USA.

"But until there are regulations that either expand, clarify or limit those strategies, it's the risk that we're taking."

Here are a few of the strategies accountants are discussing to help entrepreneurs save.

Spin out an asset

An entrepreneur who is barred from taking the 20 percent deduction because she is in a "service business" and exceeds the taxable income limits could decide to create two separate, yet related, companies.

In this case, the service business can't take the deduction, but the second company — which could be a pass-through entity that owns the building in which the business operates — may be able to do so.

You could do anything right now that is within the law, but until there are regulations that either expand, clarify or limit those strategies, it's the risk that we're taking.
Jonah Gruda
certified public accountant

Here's an example from Gruda: A married chiropractor owns his own practice and has more than $315,000 in taxable income. He can't take the 20 percent deduction from his practice because it's a service business and he exceeds the income threshold.

In order to capture the tax break, the chiropractor starts an LLC, and contributes the building where he runs his business to it.

The chiropractor then pays $300,000 a year in rent to the LLC — and this rent becomes qualified business income on which he can potentially take the 20 percent deduction. This deduction is subject to additional thresholds and limits.

Though income from the chiropractic practice won't qualify for the tax break, the rental income from the second LLC does.

"We are converting service business income that would not qualify for the deduction into income that would qualify, by spinning out the business and building," said Gruda.

Reasonable pay

Expect to see some gamesmanship with salary versus profits when it comes to S corporations.

Entrepreneurs with S corps don't have to pay self-employment taxes on profits, but they do have to pay them on the salary they collect. These levies add up to 15.3 percent and go toward Social Security and Medicare.

It's only natural that business owners have every reason to want to classify more of their money as "profit" so that it isn't subject to the employment levy, and the new tax law will encourage them to revisit that.

Hero Images | Getty Images

"The profits you take are potentially eligible for the pass-through deduction," said Jeffrey Levine, a CPA and director of financial planning at BluePrint Wealth Alliance in Garden City, New York.

"You compound the incentive to push the boundaries because there are two benefits for taking a profit versus a salary," he said.

In order to make this work, entrepreneurs need to pay themselves a "reasonable salary," which can be murky.

The IRS has some guidelines here, but you could argue the reasonableness of your pay based on a range of factors, including your job description and comparative wages elsewhere, Levine said.

Redefine expertise

Small businesses in which the principal asset is the reputation or skill of the employees are considered service businesses. They are excluded from the full 20 percent deduction if their income exceeds the taxable income thresholds of $157,000 (single) or $315,000 (married filing jointly).

"How do you determine whether the profits are related to the skill or reputation of the employees?" asked Levine. "There may be some potential for boundary shifting there, too."

Starbucks to give bonuses and raises after new tax law
Starbucks to give bonuses and raises after new tax law

Here's an example: A celebrity puts his name on a golf course. Should the golf course attribute more of its profitability to the reputation of the celebrity or to the way it runs its business?

Expect to see quibbling around this definition, particularly because the IRS hasn't given any specificity on how to apply it.

Saving for retirement

If you are an entrepreneur whose taxable income is too high for the 20 percent deduction, consider saving even more money for retirement.

This year, the overall contribution limit for defined contribution plans is $55,000 — that includes the $18,500 employees can sock away in a 401(k) and employer contributions.

This means an entrepreneur theoretically can put the maximum $55,000 into his retirement plan, which will help lower his taxable income and get him under the $157,500 (single)/$315,000 (married filing jointly) threshold.

"This is something you might want to consider doing that isn't overly creative, but it's smart planning," said Gruda.

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