The second meeting of McDermott’s Tax in the City® initiative in Seattle was held on May 22, 2018 at the Amazon headquarters. McDermott established Tax in the City® in 2014 as a discussion and networking group for women in tax aimed to foster collaboration and mentorship, and to facilitate in-person connections and roundtable events around the country. With the highest attendance rate of any Tax in the City® event to date, the May meeting featured a CLE/CPE presentation about Ethical Considerations around Tax Reform by Elizabeth Chao, Kirsten Hazel, Jane May and Erin Turley, followed by a roundtable discussion about recent tax reform insights led by Britt Haxton, Sandra McGill and Diann Smith.
Here’s what we covered at last week’s Tax in the City® Seattle:
- Tax Reform: Ethical Considerations – Because of tax reform, taxpayers face increased uncertainty and will likely face increased IRS/state scrutiny for their 2017 & 2018 returns. Therefore, it’s crucial for taxpayers to be intentional about post-reform planning and compliance, including by coordinating among various departments (federal tax, state and local tax, employee benefits, treasury, operations, etc.). Taxpayers should understand the weight of various IRS/state revenue authority guidance, the IRS’s authority to issue retroactive regulations within 18 months of passing legislation, and how to take reasonable positions in the absence of guidance. They should also understand when the IRS has longer than three years to assess tax, including when there is an omission of global intangible low taxed income (GILTI) or when the tax relates to the section 965 transition tax.
- Tax Reform Changes to Employee Compensation and Benefit Deductions – Post-tax reform, all employees of US public companies, private companies with US publicly traded debt, and foreign issuers with ADRs traded on the US market are covered employees subject to the $1 million limit for deductible compensation. Though a grandfather rule applies if existing contracts are not materially modified, key questions about how to apply this rule remain. Tax reform eliminated the employer deduction for transportation subsidies (other than bicycle subsidies). It also reduced employers’ ability to deduct meal and entertainment expenses, and removed employers’ and employees’ ability to deduct moving expenses.
- Supreme Court Update: Wayfair – Jurisdiction to Tax – Following the Wayfair oral arguments, it is difficult to predict whether the Supreme Court will uphold as constitutional South Dakota’s tax on online retailers. Wayfair raises the fundamental question of when the courts should settle tax issues, and when they should wait for Congress to act.
- Interaction of Cross-Border Tax Reform Provisions – Income of a US multinational is subject to varying rates of US tax depending on where it is earned. The US parent’s income from selling to US customers will be subject to the full rate of 21 percent and its income from selling to foreign customers will generally be subject to the foreign derived intangible income (FDII) rate of 13.125 percent. If the income is earned by a controlled foreign corporation (CFC), then amounts above a deemed tangible asset return generally will be subject to 10.5 percent US tax as GILTI. Taxpayers cannot analyze these provisions in isolation. Because the new provisions sometimes interact in unintuitive ways, it is crucial to do models to determine the impact of various transactions. For instance, if the US parent must pay a royalty to a CFC, then that payment may cause the base erosion and anti-abuse tax (BEAT) to apply, which could eliminate any tax benefit from having an intangible return earned by the CFC.
- Tax Reform: Spotlight on Partnerships – Several tax reform provisions do not clearly indicate how they apply to partnerships. One key question is whether the 50 percent GILTI deduction should be applied at the partner or partnership level.
- EU Proposal to Tax Income from Digital Commerce – On March 21, the European Commission made two proposals regarding the taxation of digital activities in the EU. First, it proposed expanding the definition of permanent establishment (PE) to include companies that have no physical presence in a country but meet a minimum threshold of annual revenues or users there (a digital PE). Second, it proposed a 3 percent tax on gross revenues from the sale of data generated from user-provided information, digital activities which allow users to interact with one another, and online advertising.
We invite all tax professionals who identify as female to continue the conversation and share tax developments with the official LinkedIn group for Tax in the City®! Click here to join.
The next Tax in the City® meeting will take place in New York on June 21. Please contact Mia Dubinets if you’d like to be added to the New York Tax in the City® mailing list, and register for the June event. Additionally, stay tuned for information regarding an inaugural Dallas Tax in the City® meeting in fall 2018!
