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Choice-of-Entity Decisions Under the New Tax Act

Bradley T. Borden

Business owners and their tax advisors are working to figure out how the 2017 Tax Cuts and Jobs Act will affect business owners’ after-tax bottom line and whether business owners should change their entity structure to reduce their taxes. In particular, the changes to the corporate tax rate and the new deduction for passthrough entities may affect the choice-of-entity calculus, and some business owners will wonder if they should change the type of entity they currently use. This brief article considers a few different scenarios to show how the new corporate tax rate and new passthrough deduction may affect the tax liability of small business owners, including services professionals such as attorneys. The article illustrates that generalities may not apply to the choice-of-entity decision in the same manner that they did under the former law. It also shows the new rules add a layer of complexity to the analysis.

The new corporate tax rate is 21%. That rate applies to a corporation’s taxable income, but corporate dividends are also subject to tax. For individuals, dividends are taxed at 0%, 15%, or 20%, depending upon the recipient’s tax situation (the 20% rate applies when a jointly-filing married couple’s income exceeds $479,000). The new act also creates a deduction for qualified business income (QBI), which applies to income from a qualified trade or business (QTB), which will include many LLCs, partnerships, S corporations, and sole proprietorships. The QBI deduction is 20% of QBI, subject to limits based upon the W-2 wages and assets of the QTB.

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