Who's in, out in small business tax break? It's complicated

Architects and engineers are still in. Accountants, doctors and lawyers remain out — mostly. New rules floated by the Trump administration lay out what kinds of businesses can take a 20 percent deduction against income taxes under the new tax law.

With the proposed rules issued Wednesday , the Treasury Department and the IRS had worked for six months to bring clarity to Congress' blueprint. But as with many aspects of the sweeping Republican tax law hustled through Congress last year, the requirements for the millions of "pass-through" businesses to score generous tax breaks are stunningly complex.

Some business owners earning over certain income levels, for example, are excluded, as are companies that are organized in certain ways or that lease their equipment rather than own it.

"They've attempted to draw lines that are clearer than the language" of the tax law, said Andrew Howlett, an attorney at law firm Miller & Chevalier who specializes in tax issues. "There are still questions that remain to be answered for taxpayers."

Steven Rosenthal, a senior fellow at the nonpartisan Urban-Brookings Tax Policy Center, said the new regulations "allow a lot of different businesses the 20 percent deduction. ... They allowed a lot of latitude for businesses to claim it."

At the same time, Rosenthal found the protections in the rules against abuse by businesses of the special tax break to be inadequate. "I think there'll be a lot of gaming of the rules," he said.

There is concern, for example, that to qualify for the deduction, individuals would quit their jobs and then contract their services back to their former employers as independent contractors. Now the government appears to have prohibited that in the new rules, said Kyle Pomerleau, director of the Center for Quantitative Analysis at the conservative Tax Foundation.

The new rules affirm the requirement in the tax law that certain business owners like lawyers, accountants, doctors and consultants can't qualify for the full deduction if their annual income exceeds $157,000 for single tax filers and $315,000 for couples filing jointly. The amount of the deduction to be claimed declines as taxpayers' income rises. The same is true for interior designers, investment managers, therapists and others.

Many small business owners around the country have been yearning for months to know whether they'll be pass-through winners or losers. Even with the new regulations, many owners still will likely be turning to tax accountants and other specialists to cut through the confusion.

Millions of businesses — from the Mom-and-Pop grocery store or florist to big law firms, hedge funds and the sprawling Trump Organization — are organized as pass-throughs in which company profits are pipelined into the owners' personal tax bucket. The owners pay individual, not corporate, tax rates on the income. The vast majority of U.S. businesses, big and small, are taxed this way.

The Republican architects of the tax plan and President Donald Trump portrayed the new pass-through tax break as a boon to Main Street businesses and entrepreneurs. Yet with lucrative partnerships and limited liability companies, or LLCs, among the pass-through crowd, lower taxes for them could enable some rich Americans to consolidate their wealth.

Before the tax law changes, the majority of pass-through owners were taxed at top individual tax rates, according to the Tax Foundation. With the $1.5 trillion tax package providing steep cuts for corporations and wealthy individuals, the Republican lawmakers crafting the legislation insisted that small business owners should get an equivalent break. The tax law offers more modest reductions for most low- and middle-income families and individuals.

"This 20 percent deduction will lead to more investment in U.S. companies and higher wages for hardworking Americans," Treasury Secretary Steven Mnuchin said in a statement.

The deduction reduces small and mid-size businesses' tax rates to their lowest levels since the Depression years of the 1930s, Mnuchin said.

Sen. Ron Wyden of Oregon, the senior Democrat on the Senate Finance Committee, isn't impressed. They rules "confirm that the fortunate few win and Mom-and-Pop shops lose under Trump's tax law," he said in a statement. "Small business owners searching for clarity aren't getting pulled out of a bureaucratic twilight zone any time soon."