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On Feb. 8, 2019, final regulations were arise in the Federal Register, accouterment advice on Sec. 199A to taxpayers and tax professionals on how to apparatus the new able business assets (QBI) answer (T.D. 9847). Among the areas the final regulations accommodate advice on, one of the best arduous is chargeless back taxpayers can accumulated assorted trades or businesses. Accession finer after-effects in trades or businesses that would contrarily be advised as abstracted and audible actuality accumulated into one barter or business for purposes of artful the QBI deduction.

For taxpayers who qualify, accession allows the accomplishment and basic limitation of Sec. 199A to be affected for the accumulated barter or business rather than for anniversary barter or business individually. Depending on the facts, accession may acquiesce a aborigine to affirmation a greater QBI answer than if the accomplishment and basic limitation was activated separately.



Example 1: A aborigine who is over the applicative taxable assets beginning has QBI of $100 anniversary from two trades or businesses A and B. A has $50 of W-2 wages, and B has $20 of W-2 wages. Neither A nor B owns any able property. If the QBI answer is computed alone for A and B, A would accomplish a QBI answer of $20, back 50% of W-2 wages, $25, exceeds 20% of QBI, $20. B would accept a QBI answer of $10, back 50% of W-2 wages, $10, is beneath than 20% of QBI, $20. In this abstracted book the absolute QBI answer for both A and B is $30 ($20 for A $10 for B). If A and B were aggregated, the absolute QBI of the accumulated barter or business would be $200, and the absolute W-2 accomplishment would be $70. The QBI answer for the aggregated accumulation would be $35, back 50% of the W-2 wages, $35, is lower than 20% of the QBI of the accumulated group, $40. Note that the accession of A and B after-effects in a net access to the QBI answer of $5 over not accumulation the businesses. As illustrated in a afterwards example, accession is not consistently beneficial.



Regs. Sec. 1.199A-4 provides the accordant rules for back taxpayers are accustomed to accumulated and how to address aggregations to the IRS. While the conference to the final regulations acknowledges that what is frequently anticipation of as a distinct barter or business may absolutely accomplish beyond assorted tax entities, the final regulations do not necessarily acquiesce all businesses operated by a aborigine to be aggregated. In fact, the belief for accession are almost akin and charge be thoroughly analyzed to ensure eligibility. Before alike assessing the accession criteria, taxpayers charge aboriginal actuate if the activities acceleration to the akin of a barter or business.

Underlying all the belief (listed beneath beneath the branch “The Accession Criteria”) is that anniversary barter or business to be aggregated charge accommodated the analogue of a barter or business beneath Regs. Sec. 1.199A-1(b)(14). Those regulations accommodate that for Sec. 199A purposes, “trade or business” about has the aforementioned acceptation as beneath Sec. 162, added than the barter or business of bold casework as an employee. The Sec. 199A regulations do aggrandize the analogue of barter or business for Sec. 199A purposes in one instance.

If the rental or licensing of actual or abstract acreage (rental activity) does not acceleration to the akin of a Sec. 162 barter or business, it may about be a barter or business for Sec. 199A purposes if the acreage is busy or accountant to a barter or business conducted by an alone or accordant passthrough article (RPE) that is frequently controlled, as authentic beneath Regs. Sec. 1.199A-4(b)(1)(i). Put accession way, if there is a self-rental action amid an alone or RPE and a frequently controlled barter or business, the self-rental action will be advised a barter or business for Sec. 199A purposes alike if it does not accommodated the Sec. 162 analogue of barter or business.

Due to the claim that the frequently controlled business be conducted by an alone or RPE, self-rental to a frequently controlled C association will not accommodated this barring and would appropriately charge to accommodated the Sec. 162 analogue of a barter or business.

A absolute altercation of the analogue of a barter or business for Sec. 162 purposes is alfresco the ambit of this item, but the assurance is awful abased on the facts and affairs and can be a arduous analysis. Treasury, acquainted this adversity as it relates to rental activities, attempted to accommodate assertive rental absolute acreage enterprises with a safe harbor.

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Notice 2019-07 provides a safe anchorage beneath which a rental absolute acreage action that meets its accomplishment and procedural requirements will be advised a barter or business for Sec. 199A purposes. A absolute altercation of the apprehension is alfresco the ambit of this discussion, but it is annual acquainted that not all rental activities will authorize for the safe harbor, and countless altitude charge to be met to annual from the safe harbor. Once a aborigine determines which activities acceleration to the akin of a barter or business, he or she will charge to actuate if the trades or businesses accommodated the belief for aggregation.

The final regulations accommodate that trades or businesses may alone be aggregated calm if they accommodated the afterward bristles criteria:

The aboriginal criterion, which requires that the aforementioned being or accumulation of bodies owns 50% or added of anniversary barter or business, was adapted hardly from the proposed regulations to analyze that the 50%-or-more accepted buying includes allegation through Secs. 267(b) and 707(b). Additionally, the conference to the final regulations absolutely provides that a C association can accumulated allotment of the buying accumulation for purposes of this requirement. This aphorism potentially provides cogent adaptability for taxpayers with buying interests that alter beyond entities.

Example 2: A, B, and C accept 50%, 49%, and 1% interests, respectively, in Affiliation X profits; and B, C, and D accept 1%, 49%, and 50% interests, respectively, in Affiliation Y profits. None of the buying by A in Affiliation X or by D in Affiliation Y is attributable to B or C beneath either Sec. 267(b) or 707(b). Alike admitting B and C do not arise to accept a majority of accumulation interests in either partnership, their accepted buying amid the two entities is at atomic 50% and, consequently, they accommodated the 50%-or-more accepted buying test.

Note that the affiliation archetype is basic or profits and that there is no minimum appropriate buying allotment to be included as allotment of the accepted group, as continued as the accepted accumulation of owners owns interests accretion 50% or added in anniversary of the trades or businesses.

The added criterion, that the buying analysis from the aboriginal archetype is met for a majority of the tax year, was additionally adapted from the proposed regulations. Beneath the final regulations, the added archetype can be annoyed alone if the buying includes the aftermost day of the tax year. So accession will not be accessible in any year of accretion involving a new 50% owner, or accumulation of owners, if the accretion occurs afterwards the mean of the tax year. In addition, dispositions of interests or shares that aftereffect in abortion to accommodated the accepted buying claim as of the aftermost day of the tax year will additionally anticipate aggregation, alike if the archetype was met for all the added canicule of the year.

The third criterion, that all the items attributable to the trades or businesses to be aggregated are arise on allotment with the aforementioned tax year, not demography into annual abbreviate tax years, charcoal blunt from the proposed regulations. So with the barring of abbreviate tax years, all trades or businesses to be aggregated charge accept the aforementioned tax year. This aphorism finer precludes accession of trades or businesses advertisement on a calendar-year base with trades or businesses advertisement on a fiscal-year basis.

The fourth criterion, that none of the trades or business to be aggregated can be an SSTB, is additionally blunt from the proposed regulations. While a abounding altercation of SSTB cachet is alfresco the ambit of this item, taxpayers and tax professionals should accord accurate application to Regs. Sec. 1.199A-5, which provides the accordant advice on back a barter or business is advised to be an SSTB. For those who accept they accomplish a barter or business that is not an SSTB, it is important to additionally administer the appropriate rules of Regs. Sec. 1.199A-5(c), which may actualize a allurement for the brash if some of the gross receipts are advised as from an SSTB or area acreage or casework are provided to a accompanying SSTB.

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The fifth archetype is additionally the best subjective, acute that all the trades or businesses to be aggregated allotment at atomic two of the three factors.

The aboriginal factor, that the trades or businesses accommodate products, property, or casework that are the aforementioned or commonly offered together, is a slight modification from the proposed regulations, which did not name acreage specifically. The final regulations additionally accommodate examples allegorical back a rental absolute acreage barter or business can be accumulated with nonrental trades or businesses (see Regs. Sec. 1.199A-4(d), Examples 8 and 9). Examples of back assorted rental absolute acreage trades or businesses can or cannot be accumulated calm are additionally provided (see Regs. Sec. 1.199A-4(d), Examples 16, 17, and 18).

The added agency in the two-out-of-three archetype is that the trades or businesses to be aggregated allotment accessories or allotment cogent centralized business elements, such as personnel, accounting, legal, manufacturing, purchasing, animal resources, or advice technology. Neither the proposed nor the final regulations ascertain what “significant” agency in this context. The conference to the final regulations alone offers that the acceptation “is abased on the facts and affairs of anniversary accumulated of trades or businesses.” While this does not action a bright-line test, obviously, the added centralized business elements the trades or businesses accept in common, the added able-bodied will be the altercation that this agency is satisfied.

The final agency in the two-out-of-three belief is that the trades or businesses are operated in allocation with, or assurance upon, one or added of the businesses in the aggregated accumulation (for example, accumulation alternation interdependencies). Similar to the added factor, this assurance is based on the facts and circumstances, and no bright-line analysis is provided. While the examples in Regs. Sec. 1.199A-4(d) do occasionally blow on this factor, they do not arise to add any description on absolutely back this agency will be accounted to accept been met.

The best cogent change from the proposed regulations to the final regulations was the amplification of the Regs. Sec. 1.199A-4(b)(2) accession operating rules to accommodate RPEs in accession to individuals. Beneath the final regulations, individuals can accumulated any trades or businesses in which they accept an interest, whether conducted anon or through an RPE, so continued as they amuse the accession belief listed above. Similarly, RPEs may accumulated trades or businesses they conduct anon or through interests in lower-tier RPEs, so continued as the aforementioned belief are satisfied.

The best cogent aftereffect of accumulation at the RPE level, instead of the alone level, is that any upper-tier RPEs or any individuals with an absorption in the RPE cannot disaggregate those trades or businesses that accept been aggregated by the lower-tier RPE. Upper-tier RPEs and individuals with an absorption in the RPE that fabricated the accession acclamation are chargeless to add added trades or businesses to the aggregated accumulation at their level, provided the accustomed accession belief are satisfied. Essentially, back accession occurs at the RPE level, the owners of that RPE can add to, but not decrease from, the trades or businesses in the aggregated group.

Aggregation at the RPE akin additionally provides a description to the advertisement requirements. Generally, beneath Regs. Sec. 1.199A-6(b), RPEs are appropriate to address anniversary owner’s allotment of QBI, W-2 wages, and unadjusted base anon afterwards accretion (UBIA) from anniversary barter or business conducted by the RPEs or through lower-tier RPEs. Back RPEs accumulated trades or businesses, they are alone appropriate to address out QBI, W-2 wages, and UBIA to the owners for the aggregated barter or business beneath Regs. Sec. 1.199A-6(b)(2).

Taxpayers should anxiously counterbalance the costs and allowances of accession at the RPE akin against the alone level. While the description of advertisement at the RPE akin is a cogent incentive, it comes at the bulk of eliminating adaptability for upper-tier RPEs and individuals. Factors to accede accommodate whether any owners are acceptable to appetite to disaggregate the trades or businesses, whether the accomplishment and basic limitation for the aggregated trades or businesses would aftereffect in a college answer with or after aggregation, and the likelihood that factors arch to the accepted accommodation are acceptable to abide in the future.

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Regs. Sec. 1.199A-4(c) provides the advertisement and bendability requirements for accession by both individuals and RPEs. Unlike alignment elections beneath Sec. 469, accession beneath Sec. 199A charge be appear annually for both individuals and RPEs alike if there is no change in the trades or businesses aggregated. Specifically, a account charge be included with the return, in the case of an individual, or with anniversary Schedule K-1, in the case of an RPE, advertisement the afterward advice for every barter or business in the aggregated group:

For tax year 2018 the IRS has provided, in Publication 535, Business Expenses, that the able adjustment for advice aggregations is “Schedule B — Accession of Business Operations” for that publication’s QBI answer worksheet. In accession to Publication 535, the 2018 instructions for Forms 1065, U.S. Acknowledgment of Affiliation Income, 1120S, U.S. Association Assets Tax Return, and the accompanying Schedule K-1 instructions additionally accommodate advice on how to appropriately address aggregations.

Once an accession acclamation has been made, it charge be followed consistently in all consecutive tax years unless a cogent change in facts and affairs causes the above-mentioned accession to no best authorize beneath the belief above. Presumably, the disposition of a barter or business would be advised a cogent change in facts and circumstances, back it would agreement abuse of the added archetype above, that accepted buying exists for the majority of the tax year, including the final day of the tax year (Regs. Sec. 1.199A-4(b)(1)(ii)). The final regulations additionally accommodate that back the above-mentioned accession no best qualifies due to a cogent change in facts and circumstances, the alone or RPE is appropriate to reapply the accession rules and actuate a new permissible aggregation, if any. Individuals and RPEs are accustomed to add anew created or anew acquired trades or businesses to an absolute accession group, bold all applicative belief are met.

Importantly, in adverse with the rules beneath Sec. 1411, abortion to accumulated will not itself be advised an aggregation. So not accumulation in tax year 2018, for example, does not anticipate a aborigine from accumulation in tax year 2019, alike if there accept been no changes in facts and circumstances. Generally, accession cannot be fabricated on an adapted tax return; however, for tax year 2018 this accepted aphorism does not apply. In the accident that an alone or RPE does amusement a accumulation of trades or businesses as aggregated, after accouterment the appropriate acknowledgment statement, the IRS has arbitrary ascendancy to disaggregate those trades or businesses. If the IRS contest this right, the aborigine is not acceptable to accumulated those trades or businesses for the consecutive three tax years. Back the QBI answer is currently appointed to expire on Dec. 31, 2025, that three-year aeon could decidedly absolute a taxpayer’s adeptness to annual from an aggregation.

Aggregation beneath Sec. 199A ultimately boils bottomward to two questions: Can the individuals or RPEs accumulated beneath the applicative rules, and if they can, should they? If they should, the actual catechism is whether to do it at the alone or RPE level. Back neither the statute nor the regulations anytime force a aborigine to accumulated for Sec. 199A purposes, taxpayers accept a abundant accord of flexibility.

Aggregation is not consistently beneficial.

Example 3: A owns 100% of the outstanding shares of two S corporations that authorize for aggregation, Operating Inc. (Operating) and Acreage Inc. (Property). The companies accept the amounts of QBI, W-2 wages, and UBIA set alternating in the table, “Aggregation of Trades or Businesses in Archetype 3,” below. Assume A is absolutely accountable to the accomplishment and basic limitation, i.e., has taxable assets beyond the beginning bulk on his alone return, acceptation his QBI answer for Operating and Acreage will be bound beneath Sec. 199A(b)(2)(B) to the greater of 50% of the W-2 accomplishment or 25% of the W-2 accomplishment additional 2.5% of the UBIA from the trades or businesses. Those limitations are affected in the table in curve 4 and 5.

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