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IRS Proposes Section 163(j) Regulations – New Business Interest Expenses Deduction Limit

On November 26, 2018, the Internal Revenue Service (IRS) issued proposed regulations (Proposed Regulations) pursuant to section 163(j). Public Law 115-97, the Tax Cuts and Jobs Act (TCJA), amended Internal Revenue Code (Code) Section 163 by modifying paragraph (j) to limit the amount of business interest a taxpayer may deduct for taxable years beginning after December 31, 2017. The amendment generally limits the deduction for business interest to the sum of a taxpayer’s business interest income and thirty percent of a taxpayer’s adjusted taxable income (ATI) for the taxable year.

The Code Section 163(j) limit is also increased by a taxpayer’s “floor plan financing interest,” which is certain interest used to finance the acquisition of motor vehicles held for sale or lease. Code Section 163(j)(8) defines ATI as a taxpayer’s taxable income computed without regard to: any item of income, gain, deduction, or loss which is not properly allocable to a trade or business; any business interest or business interest income; any net operating loss deduction under Code Section 172; the amount of any deduction for qualified business income under Code Section 199A; and in the case of taxable years beginning before January 1, 2022, any deduction allowable for depreciation, amortization, or depletion.

The Proposed Regulations address a variety of issues, including the following:

  • Trade or Business. New Code Section 163(j) defines business interest income and expense as amounts that are “properly allocable to a trade or business,” but it does not define trade or business.” The Proposed Regulations define a “trade or business” by reference to Code Section 162 because Code Section 162(a) provides the “most established and developed definition of trade or business.”

  • Interest. The Proposed Regulations define “interest” broadly to include other ordinary income items similar to interest, such as substitute interest payments in securities lending transactions, loan commitment fees, debt issuance costs, Code Section 707(c) guaranteed payments for the use of capital, and factoring income. Proposed Regulation § 1.163(j)-3 introduces rules, including ordering rules, for the relationship between Code Section 163(j) and other provisions affecting interest.

  • S Corporations. Proposed Regulation § 1.163(j)-6 provides guidance regarding the application of the Code Section 163(j) deduction to partnerships and S corporations.

  • CFCs. The Proposed Regulations provide that Code Section 163(j) may apply to limit the deductibility of a controlled foreign corporation’s (CFC’s) business interest expense, thereby potentially limiting a CFC’s deduction of business interest for purposes of computing subpart F income and tested income under Code Section 951A(c)(2)(A).

  • ECI. The Proposed Regulations also provide that Code Section 163(j) applies to foreign corporations and other foreign persons for purposes of computing income effectively connected with a US trade or business.

The Proposed Regulations provide a variety of other rules. Some of the notable provisions include rules applicable to REITs, RICs, tax-exempt entities and consolidated group members. They also provide rules regarding the disallowed business interest expense carryforwards of C corporations and rules regarding elections for excepted trades or businesses and rules for allocating expenses and income between non-excepted and excepted trades or businesses.

Practice Point: With the amendment of Code Section 163(j), the ability of some taxpayers to deduct interest on intercompany debt has been diminished substantially. This may require a taxpayer to reevaluate funding and capital structures, and may necessitate a new strategy.

© 2020 McDermott Will & EmeryNational Law Review, Volume VIII, Number 355

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About this Author

Associate

Kevin Hall focuses his practice on domestic and international tax matters for multinational companies and high-net-worth individuals.

Kevin has experience planning and implementing a variety of transactions, including domestic and cross-border mergers, acquisitions, spin-offs, and joint ventures. He has provided tax advice in connection with capital markets transactions and cross-border lending transactions. He has also advised fund sponsors and fund investors.  

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202-756-8718
Associate

Emily A. Mussio advises clients on various aspects of United States and international tax law. She is experienced with tax controversy and litigation, and federal income tax covering individuals, corporate and partnership taxation.

While in law school, Emily served as an Associate Editor for the Valparaiso University Law Review and as an Associate Justice of the Moot Court Society. She also served as a judicial extern for The Honorable Susan E. Cox, US District Court for the Northern District of Illinois.

312-984-3632
Justin Jesse International Tax Attorney McDermott Will Emery Law Firm
Associate

Justin Jesse is an associate in the law firm of McDermott Will & Emery LLP and is based in the Firm’s Washington, DC office.  He focuses his practice on U.S. and International Tax.

202-756-8777
David D. Sherwood, McDermott Will, Domestic Tax Issues Lawyer, Joint Ventures Attorney
Counsel

David D. Sherwood focuses his practice on a broad range of domestic tax issues affecting corporations, joint ventures and their owners, including the tax treatment of spin-offs and other restructurings, consolidated returns, the availability of deductions on the worthlessness or other disposition of stock, and the formation of investment partnerships, real estate partnerships, corporate joint ventures and multinational group internal partnerships.

David also has extensive experience dealing with complicated business appraisals and issues...

202-756-8710