IRS Issues Final and New Proposed Regulations Implementing the 3.8% Tax on Investment Income

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1 IRS Issues Final and New Proposed Regulations Implementing the 3.8% Tax on Investment Income Final Regulations and New Proposed Regulations Implement the 3.8% Tax on Net Investment Income of Individuals, Estates and Trusts with Income in Excess of Statutory Thresholds SUMMARY The Internal Revenue Service (the IRS ) recently adopted final regulations (the Final Regulations ) and contemporaneously issued new proposed regulations (the 2013 Proposed Regulations ) related to the 3.8% tax on the net investment income of individuals, estates and trusts with modified adjusted gross income in excess of statutory thresholds (the NIIT ) that is effective for taxable years beginning on or after January 1, The Final Regulations substantially adopt the proposed regulations issued on December 5, 2012 (including the corrections to the proposed regulations published on January 31, 2013, the 2012 Proposed Regulations ), subject to the clarifications and modifications summarized below. For a more detailed summary of the 2012 Proposed Regulations, see S&C Publication IRS Proposes Regulations Implementing the New 3.8% Tax on Investment Income, published December 10, The Final Regulations differ from the 2012 Proposed Regulations in certain key respects, including: The Final Regulations withdraw the portion of the 2012 Proposed Regulations that addressed the imposition of the NIIT on the disposition of interests in partnerships and S corporations. The Final Regulations permit the $3,000 capital loss deduction against net investment income, allow certain net operating losses to offset net investment income and permit trading losses to offset the gross trading gains of a trading business. The Final Regulations include numerous other generally helpful clarifications and modifications with respect to the calculation of net investment income and the taxpayers subject to the tax. New York Washington, D.C. Los Angeles Palo Alto London Paris Frankfurt Tokyo Hong Kong Beijing Melbourne Sydney

2 The Preamble to the Final Regulations acknowledges that a number of issues remain outstanding and require additional guidance, including the material participation of trusts in a trade or business. The 2013 Proposed Regulations address: the calculation of net gain on the disposition of a partnership interest or S corporation stock to which the NIIT may apply (providing rules intended to replace those withdrawn by the Final Regulations); the tracking of capital loss carryforwards for purposes of the NIIT; the treatment of guaranteed payments from a partnership to a partner and payments made from a partnership to a retiring or deceased partner; the inclusion of periodic and nonperiodic payments from certain notional principal contracts ( NPCs ); the inclusion of income or deductions from real estate mortgage investment conduit ( REMIC ) residual interests; and the application of the NIIT to income recipients of charitable remainder trusts ( CRTs ). The Final Regulations and the 2013 Proposed Regulations are effective for taxable years beginning after December 31, 2013 (except for the rules applicable to CRTs, which are effective for taxable years beginning after December 31, 2012). In addition, taxpayers may generally rely on the 2012 Proposed Regulations and Final Regulations for any taxable year that begins after December 31, 2012, but before January 1, DISCUSSION As a general matter, under the NIIT, citizens and residents of the United States (i.e., any individual other than a non-resident alien) and certain estates and trusts must pay an additional 3.8% tax on the lesser of (1) the taxpayer s net investment income and (2) the excess (if any) of the taxpayer s modified adjusted gross income (or the taxpayer s adjusted gross income, for estates and trusts) for the taxable year over a certain threshold (which for individuals is between $125,000 and $250,000, depending on the individual s circumstances, and for estates and trusts is $11,950 for tax year 2013). In applying the basic framework of the NIIT, as discussed in more detail below, the Final Regulations adopt most of the provisions of the 2012 Proposed Regulations, with the more significant modifications and clarifications described below. A. NET INVESTMENT INCOME Under the 2012 Proposed Regulations, net investment income generally included gross income from certain interest, dividends, annuities, royalties and rents, including substitute interest and dividend payments, and net gains attributable to the disposition of property, unless such income or net gains is derived in the ordinary course of a trade or business (other than a trading activity in which the taxpayer materially participates (i.e., income from a trade or business, which is a passive activity subject to the NIIT)). -2-

3 The Final Regulations adopt this general definition, with a number of changes. The following paragraphs summarize key changes made to the Final Regulations. 1. Withdrawal of Rules for Passthroughs The Final Regulations withdraw the portion of the 2012 Proposed Regulations applicable to determining net investment income from the disposition of an interest in a partnership or S corporation. The 2013 Proposed Regulations (discussed below) replace the withdrawn rules. 2. Liberalize the Use of Deductions and Losses In determining net investment income, the 2012 Proposed Regulations provided that items of gross income are reduced by deductions properly allocable to such income, using general income tax principles to determine the amount and timing of a deduction. As a general matter, however, the 2012 Proposed Regulations limited a taxpayer s ability to use capital losses to offset net investment income, except in the case of determining net gain in respect of certain assets. In the case of a trading business, net losses from trading were not allowed to offset gross trading gains. Net operating losses also were not permitted to offset net investment income. The Final Regulations significantly depart from these restrictive rules: $3,000 Capital Loss Allowance. The 2012 Proposed Regulations did not allow taxpayers the standard $3,000 capital loss deduction for the purposes of calculating the NIIT. The Final Regulations reverse this rule, and permit taxpayers to claim this loss deduction under the NIIT. Net Operating Losses. The 2012 Proposed Regulations did not allow taxpayers to reduce net investment income by net operating losses. The Final Regulations reverse this rule, and permit taxpayers to claim a net operating loss against net investment income, to the extent the net operating loss is attributable to net investment income. The Final Regulations provide rules for tracking the portion of net operating losses attributable to net investment income. Trading Losses. The 2012 Proposed Regulations did not allow traders to offset gross trading gains with trading losses. The Final Regulations expressly permit trading losses to offset trading gains for purposes of determining the net investment income from a trading business. To the extent trading losses exceed trading gains, the Final Regulations also permit a taxpayer to deduct such excess losses against other categories of net investment income. Capital Loss Carryforwards. The Final Regulations do not address the treatment of capital loss carryforwards for purposes of the NIIT, but these items are specifically addressed in the 2013 Proposed Regulations. 3. Regrouping of Passive Activities The 2012 Proposed Regulations apply the principles of the so-called passive loss rules to determine whether a trade or business is a passive activity with respect to the taxpayer. Under these rules, a taxpayer groups the scope of his or her activities for purposes of determining whether an activity is passive and generally is not permitted to regroup activities in subsequent years. As an accommodation to taxpayers, the 2012 Proposed Regulations permitted a taxpayer to regroup his or her activities in the first taxable year after December 31, 2012 in which the taxpayer earned income subject to the NIIT. The Final Regulations expand this rule to also permit regrouping on amended returns, if the taxpayer becomes -3-

4 subject to the NIIT upon amending a return (and had not been subject to the NIIT in an earlier taxable year). If through such regrouping, however, the taxpayer s net investment income is below the statutory thresholds, the taxpayer is not subject to the NIIT on the amended return, and the regrouping will be disregarded until the taxpayer becomes subject to the NIIT in a subsequent year. 4. Treatment of Former Passive Activities The 2012 Proposed Regulations did not address whether suspended passive losses could be applied as a deduction against net investment income. As a general matter, for purposes of the so-called passive loss rules, losses from a passive activity or a sale of the passive activity (or property used in such activity) may only be used to offset passive income. Any such losses are carried forward (i.e., suspended ) until the taxpayer has sufficient passive income to offset those losses. The Final Regulations clarify that suspended losses derived from a former passive activity are deductible in the calculation of net investment income, but only to the extent nonpassive income from the activity is included in net investment income. 5. Material Participation of Fiduciaries The Preamble to the Final Regulations acknowledges that the enactment of the NIIT has created an additional and compelling reason to provide clarity regarding how to determine whether an estate or trust materially participates in a trade or business. (This is particularly important because income from an active trade or business in which the estate or trust materially participates generally will not be subject to the NIIT.) However, the Preamble to the Final Regulations explains that due to the complexity of this issue, the IRS is continuing to study the question and may initiate a guidance project at a later date. The Preamble to the Final Regulations states that until additional guidance is provided, taxpayers should rely on existing authorities under the passive loss rules. 6. Other Rules for Calculating Net Investment Income a. Trade or Business Definition The 2012 Proposed Regulations did not define the term trade or business. The Final Regulations define the term trade or business by reference to Section 162 of the Code (the Section that permits deductions of business expenses). b. Self-Charged Items The Final Regulations provide that self-charged interest income (e.g., interest from a loan to a partnership or S corporation conducting an active trade or business in which the taxpayer has an interest and materially participates) is excluded from net investment income to the extent of the taxpayer s allocable share of the nonpassive interest expense deduction. Similarly, the Final Regulations provide that selfcharged rental income (e.g., rent from a partnership or S corporation conducting an active trade or -4-

5 business in which the taxpayer has an interest and materially participates) is deemed to be derived in the ordinary course of a trade or business and excluded from net investment income. c. Pension Distributions Income from annuities is generally includable in net investment income, unless such amounts are paid in consideration for services. Accordingly, the Final Regulations clarify that distributions from pension plans, even if paid in the form of an annuity, are not included in net investment income. d. Real Estate Professionals Under the 2012 Proposed Regulations and the Final Regulations, whether income with respect to the real estate business will be subject to the NIIT is a determination generally made under the so-called passive loss rules. However, the Final Regulations provide a bright-line test for certain income earned by real estate professionals who participate in one or more rental real estate activities for more than 500 hours per year, generally. Rental income derived from such activity and gain or loss resulting from the disposition of property used in such activity is deemed to be derived in the ordinary course of a trade or business and not subject to the NIIT. The inability for a taxpayer to satisfy the 500 hours safe harbor does not preclude such taxpayer from establishing that such gross rental income is not included in net investment income. e. Controlled Foreign Corporations and Passive Foreign Investment Companies Similar to the 2012 Proposed Regulations, the Final Regulations generally do not include in net investment income current Subpart F income inclusions from a controlled foreign corporation (a CFC ) or income from a passive foreign investment company (a PFIC ) with respect to which a so-called QEF election has been made, unless an election has been made to include such income as dividends (the Subpart F Election ). (The Subpart F Election avoids the timing difference created by the default rule, under which income from a CFC or PFIC is included for purposes of the NIIT when distributed, and the complex rules addressing the taxpayer s basis in the stock of the CFC and PFIC for purposes of the NIIT.) The Final Regulations expand these rules by (1) permitting the Subpart F Election on an entity-by-entity basis; and (2) permitting a taxpayer to make the Subpart F Election through a partnership, S corporation or common trust fund. f. Covered Expatriate Deemed Sales The Final Regulations clarify that the gain recognized by certain U.S. citizens upon expatriation (i.e., gain imposed upon a deemed sale of all of the expatriate s assets) is included in net investment income. g. Charitable Gift Annuities As discussed above, income from annuities is generally includable in net investment income. Commentators suggested that income from a charitable gift annuity (i.e., an arrangement where a charitable organization agrees to make annuity payments to a donor in exchange for a current donation of -5-

6 property) should be treated in a manner similar to that prescribed for CRT distributions, which would permit a portion of the payment to be NIIT-exempt in certain cases. Nevertheless, the Preamble to the Final Regulations provides that charitable gift annuity payments, like all other annuity payments, are included in net investment income. This treatment applies regardless of when the charitable gift annuity was established. h. Creditability and Deductibility of Other Taxes The Final Regulations retain the position of the 2012 Proposed Regulations that other taxes (e.g., state, local, foreign income, war profits and excess profits taxes) are generally deductible to the extent permitted under general income tax principles. In addition, the Final Regulations clarify that foreign taxes generally creditable under general income tax principles are not creditable against the NIIT. i. Income of Limited Partners and S Corporation Shareholders The Final Regulations are consistent with the 2012 Proposed Regulations in their treatment of selfemployment income. Net investment income does not include any item of income or deduction allowed in determining self-employment income for such taxable year, unless the income or deduction arose in connection with the trade or business of trading financial instruments and commodities. The Preamble to the Final Regulations acknowledged the ambiguity of the interaction between the self-employment income rules and the NIIT to taxpayers that materially participate in a limited liability partnership or limited liability company. However, the Preamble and the Final Regulations do not address the application of the NIIT to certain income of limited partners or S corporation shareholders that materially participate in the trade or business of the limited partnership or S corporation. Under the self-employment income rules, income (not including net gain from the sale of an asset held for investment, income from a trade or business of trading financial instruments and commodities, or partnership guaranteed payments) allocated to a limited partner or S corporation shareholder who materially participates in the partnership s or S corporation s active trade or business is not subject to the 3.8% tax on net earnings of selfemployment income and is also not subject to the NIIT. B. INDIVIDUALS, ESTATES AND TRUSTS SUBJECT TO TAX 1. Dual-Resident Aliens and Dual-Status Individuals The 2012 Proposed Regulations did not address the applicability of the NIIT to dual-resident aliens and dual-status individuals. Under the Final Regulations, a dual-resident alien who is a resident of another country for purposes of a U.S. income tax treaty and who claims the benefit of the treaty is not subject to the NIIT (and is treated as a non-resident alien for purposes of the NIIT). By contrast, a dual-status individual (an individual considered resident for part of the year and nonresident for the other part) is subject to tax only with respect to the portion of the year such individual is treated as a resident of the United States. A dual-status individual who is a nonresident at the beginning of the year, and who is married to a U.S. citizen or resident, may make a joint election with his or her spouse to be treated as a -6-

7 resident for general income tax purposes. Under the Final Regulations, the net investment income of individuals (and his or her spouse) who make such an election will be also subject to the NIIT. 2. Foreign Estates and Foreign Trusts The 2012 Proposed Regulations expressly reserved as to whether the NIIT would apply to foreign estates and certain foreign trusts. The Final Regulations provide that foreign estates and trusts are exempt from the application of the NIIT. The U.S. beneficiaries of foreign estates, however, are subject to the NIIT on distributions from foreign estates. The Preamble to the Final Regulations provides that the NIIT should apply to distributions to U.S. beneficiaries from foreign trusts as well, but that until additional guidance is issued, such distributions will not be subject to the NIIT. 3. Charitable Trusts The 2012 Proposed Regulations provided that the NIIT would not apply to wholly charitable trusts. The Final Regulations retain this exemption and provide that wholly charitable estates are exempt as well. 4. Special Treatment of Charitable Remainder Trusts Unlike a wholly charitable trust, a CRT makes annuity or unitrust payments to non-charitable parties for a specified period before distributing the remainder to a charitable trust or organization. While the trust itself is exempt from the NIIT, the 2012 Proposed Regulations provided special rules for calculating the portion of each periodic distribution that is included in the recipient s net investment income. According to those rules (the so-called simplified method ), a CRT distribution consists of net investment income in an amount equal to the lesser of (i) the amount of the distribution and (ii) the current and accumulated net investment income of the CRT. Put differently, under the simplified method, distributions are treated as being made entirely from the CRT s accumulated net investment income until such amount has been exhausted. Diverging from the 2012 Proposed Regulations, the Final Regulations provide that net investment income is allocated to annuity and unitrust payments according to the rules provided in the Section 664 Regulations. Under these rules (the so-called category and class system ), the CRT divides its income into various categories based on (i) the income s character (e.g., ordinary vs. capital) and (ii) the tax rate applicable to such income (e.g., interest income vs. qualified dividends; net investment income vs. NIITexempt income). Distributions from the CRT are then treated as being made from the categories in an order prescribed in the Section 664 Regulations (i.e., ordinary income before capital gains, higher-rate income before lower-rate income). Unlike the simplified method, the category and class system permits distributions to be made from NIIT-exempt income prior to the exhaustion of the CRT s accumulated net investment income. As discussed below, the 2013 Proposed Regulations would permit CRTs to elect to use the simplified method instead of the category and class system. -7-

8 C. EFFECTIVE DATE OF FINAL REGULATIONS The Final Regulations are effective for taxable years beginning after December 31, 2013 (except for the rules applicable to CRTs, which are effective for taxable years beginning after December 31, 2012), however taxpayers may generally rely on the 2012 Proposed Regulations and Final Regulations for any taxable year that begins after December 31, 2012, but before January 1, D PROPOSED REGULATIONS 1. Disposition of Interests in Partnerships or S Corporations For the purposes of determining net investment income, net gain includes gain recognized from the disposition of interests in a partnership or S corporation. The 2012 Proposed Regulations required taxpayers to first compute its gain (or loss) from the disposition of the interest in the partnership or S corporation and then reduce such gain (or loss) by the amount of nonpassive gain (or loss) that would have been allocated to the taxpayer upon a hypothetical sale of all the partnership s or S corporation s assets for fair market value immediately before the disposition. The Final Regulations withdraw these rules. The 2013 Proposed Regulations rework the method for calculation of net gain from dispositions of partnerships or S corporations and add rules intended to simplify the calculation of net investment income in such transactions. As a general matter, the 2013 Proposed Regulations provide that net gain from the disposition of interests in a partnership or S corporation equals the lesser of (i) the amount of gain the taxpayer recognizes under general income tax principles, or (ii) the taxpayer s allocable share of net gain from a deemed sale of the partnership s or S corporation s property that would result in gain or loss of a type includable as net gain in net investment income. A similar rule applies for a taxpayer that recognizes a loss for general income tax purposes. Under the 2013 Proposed Regulations, a partnership or S corporation generally is required to provide its owners with information sufficient to make these calculations. The 2013 Proposed Regulations require taxpayers to apply the so-called passive loss rules to determine the net investment income arising from a deemed sale of a partnership s or S corporation s assets. The Preamble to the 2013 Proposed Regulations asserts that use of the so-called passive loss rules should relieve the administrative burden on taxpayers, since taxpayers should already be tracking similar information for purposes of the passive activity loss rules. The 2013 Proposed Regulations also provide a look through rule for tiered partnerships or S corporations, which treats the taxpayer as owning a proportionate interest of any lower-tier partnership or S corporation upon the disposition by the upper-tier entity of interests in the lower-tier entity. The Preamble to the 2013 Proposed Regulations recognizes that investors in tiered partnerships may not have access to information needed to properly determine net investment income on the disposition of a -8-

9 subsidiary partnership or S corporation, and the 2013 Proposed Regulations have expressly reserved for future guidance on the rules to determine net investment income in such a case. The 2013 Proposed Regulations also provide that certain qualified taxpayers may apply an optional simplified reporting method (the Simplified Method ) in lieu of the calculation method described above. Under the Simplified Method, the amount of net gain or net loss from the disposition of an interest in a partnership or S corporation is determined by the historic distributive share amounts received by the taxpayer to establish the percentage of assets within the partnership or S corporation that are passive with respect to the taxpayer. For example, if 10% of the income stated on a K-1 is net investment income, the partner is permitted to assume that 10% of the gain on disposition of the partnership interest would be net investment income. Beyond this rudimentary example (from the Preamble to the 2013 Proposed Regulations), the 2013 Proposed Regulations do not provide rules for how net investment income would be calculated under the Simplified Method. To qualify for this Simplified Method, either (a) the total amount of gain or loss recognized by the taxpayer under general income tax principles from the disposition of the interest in the partnership or S corporation must be less than $250,000; or (b) (i) the taxpayer s interest in the partnership or S corporation must be 5% or less, generally during the two years prior to the disposition, and (ii) the gain or loss recognized by the taxpayer under general income tax principles from the disposition must be less than $5 million. The 2013 Proposed Regulations also provide certain exceptions for situations in which this alternative method cannot apply, including if: (i) the taxpayer held the interest for less than 12 months, (ii) certain contributions and distributions are made as part of a plan to transfer the taxpayer s interest, (iii) the partnership or S corporation significantly modified the composition of its assets, (iv) the S corporation recently converted from a C corporation, and (v) the taxpayer makes a partial disposition of its interest. The taxpayer must attach a statement to the taxpayer s tax return that includes the information provided by the partnership or S corporation and the amount of gain or loss recognized on the disposition of the interest, among other information. The Preamble to the 2013 Proposed Regulations clarifies that distributions in excess of basis are not addressed by the 2013 Proposed Regulations. 2. Capital Loss Carryforwards Similar to the new rules regarding net operating losses described above, the 2013 Proposed Regulations provide rules to annually track and adjust capital loss carryforwards to prevent capital losses excluded from the calculation of net investment income from being deducted against net investment income in a carryforward year. The Preamble to the 2013 Proposed Regulations states that capital losses attributable to net investment income incurred prior to 2013 are allowable losses for the calculation of net investment income. -9-

10 3. Guaranteed Payments and Payments to Retired or Deceased Partners Under the 2013 Proposed Regulations, certain guaranteed payments from a partnership to a partner, as defined under partnership rules, are included in net investment income, such as interest payments on loans from partners to a partnership. The 2013 Proposed Regulations exclude guaranteed payments for services from net investment income, regardless of whether these payments are subject to the selfemployment tax. The 2013 Proposed Regulations also provide detailed rules for determining whether payments from a partnership to a retired or deceased partner will be subject to the NIIT. Under these rules, as a general matter, if the payment is treated as a distributable share of partnership income, the payment retains the character of the partnership s income for purposes of the NIIT. If the payment is treated as a guaranteed payment, its treatment under the NIIT will either be as services income or net investment income (depending on the context), except that payments attributable as unrealized receivables or goodwill will be treated respectively as net investment income or gain from the disposition of a partnership interest. Last, if the payment to a retiring partner is treated as in exchange for the partner s interest in the partnership, then the payment will be treated as from the disposition of a partnership interest for purposes of the NIIT. 4. Certain Notional Principal Contracts Under the 2012 Proposed Regulations, net gain on the disposition of an NPC was includable in net investment income, unless such gain is derived in the ordinary course of a trade or business (other than a trade or business that consists of certain passive or trading activities). In addition, under the 2012 Proposed Regulations, periodic and nonperiodic payments from an NPC were included in net investment income, but only if such income was derived in the trade or business that is passive with respect to the taxpayer or in the trade or business of trading financial instruments or commodities. The Final Regulations adopt these rules but reserve for future regulation the treatment of NPCs that reference property that produces net investment income. Under the 2013 Proposed Regulations, all income from NPCs that make payments by reference to property that would produce net investment income (including an index) if held directly by the taxpayer, regardless of whether such NPC is held in connection with a passive activity or trading business, is included in net investment income. 5. REMIC Residual Interests A REMIC residual interest represents the junior-most interest in a REMIC. In general, a REMIC is not treated as carrying on a trade or business, and holders of a REMIC residual interest are required to recognize a REMIC s taxable income or loss upon the disposition of mortgages, certain interest income and interest expense. The 2013 Proposed Regulations require taxpayers to include the daily portion of a REMIC s taxable income or loss, consistent with treatment under general income tax principles. -10-

11 6. Simplified Method Election for Charitable Remainder Trusts As discussed above, the Final Regulations deviated from the 2012 Proposed Regulations in requiring taxpayers to use the category and class method (instead of the simplified method ) for allocating a CRT s net investment income to annuity and unitrust payments. Under the 2013 Proposed Regulations, taxpayers could elect to use a modified version of the simplified method. The rules permitting this election are proposed to be effective for tax years beginning after December 31, Effective Date The 2013 Proposed Regulations become effective for taxable years beginning after December 31, * * * Copyright Sullivan & Cromwell LLP

12 ABOUT SULLIVAN & CROMWELL LLP Sullivan & Cromwell LLP is a global law firm that advises on major domestic and cross-border M&A, finance, corporate and real estate transactions, significant litigation and corporate investigations, and complex restructuring, regulatory, tax and estate planning matters. Founded in 1879, Sullivan & Cromwell LLP has more than 800 lawyers on four continents, with four offices in the United States, including its headquarters in New York, three offices in Europe, two in Australia and three in Asia. CONTACTING SULLIVAN & CROMWELL LLP This publication is provided by Sullivan & Cromwell LLP as a service to clients and colleagues. The information contained in this publication should not be construed as legal advice. Questions regarding the matters discussed in this publication may be directed to any of our lawyers listed below, or to any other Sullivan & Cromwell LLP lawyer with whom you have consulted in the past on similar matters. If you have not received this publication directly from us, you may obtain a copy of any past or future related publications from Stefanie S. Trilling ( ; in our New York office. CONTACTS New York James I. Black III Charles T. Dowling Jeffrey D. Hochberg Andrew S. Mason David J. Passey David C. Spitzer Zena M. Tamler Russell L. Feit T. Max O Neill Washington, D.C. Donald L. Korb SC1: D

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