Tax Management Summary

By the Tax Management Editorial Staff
Washington, D.C.

President Bush signs into law a $146 billion tax cut package (H.R. 1308) that extends relief aimed at families and several expired business incentives, including the research and development tax credit. The Working Families Tax Relief Act extends through 2010 the $1,000-per-child tax credit, enhanced marriage tax relief, and an expanded 10% income tax bracket by filling in gaps created by different phase-in periods under recent tax law. The legislation also provides individual taxpayers one year of additional AMT relief. In addition, the new law provides for the seamless extension of 23 expired tax provisions.

The following is a discussion of individual sections of the Act.

TITLE I--EXTENSION OF FAMILY TAX PROVISIONSRepeal of Scheduled Reductions in Child Tax Credit;
Acceleration of Increases in Refundability of the Child Tax Credit

The Act extends the maximum $1,000-per-child tax credit through 2010. The maximum credit reverts to $500 in taxable years beginning after December 31, 2010, under the EGTRRA sunset provision. The Act also accelerates to 2004 the increase in refundability of the child tax credit to 15% of the taxpayer's earned income in excess of $10,750 (with indexing).

The Act provides for full marriage penalty relief for tax years 2005-2010 by increasing the basic standard deduction amount for joint returns to twice the basic standard deduction amount for single returns.

The Act provides for additional marriage penalty relief for taxable years 2005-2010 by increasing the size of the 15% rate bracket for joint returns to twice the corresponding rate bracket for single returns.

The Act increases the size of the 10% rate bracket for individuals for taxable years 2005-2010 by setting the rate bracket for these years at 2003 levels (i.e., $7,000 for single, $10,000 for head of household, and $14,000 for married filing joint), with indexing.

The Act extends the increased alternative minimum exemption amounts in §55(d) for individual taxpayers through 2005 (i.e., $58,000 for married filing joint and surviving spouses, $40,250 for single and head of household, $29,000 for married filing separate, and $22,500 for estates and trusts).

The Act provides that, for taxable years beginning after 2004, combat pay that is otherwise excluded from gross income under §112 would be treated as earned income that is taken into account in computing taxable income for purposes of calculating the refundable portion of the child credit. The Act also provides that, with respect to any taxable year ending after October 4, 2004 and before January 1, 2006, any taxpayer may elect to treat combat pay that is otherwise excluded from gross income under §112 as earned income for purposes of the earned income credit.

The Act provides that to the extent amendments made by Title I--Extension of Family Tax Provisions--are to provisions under the 2001 Economic Growth and Tax Relief Reconciliation Act (EGTRRA), P.L. 107-16, the provisions under this title will sunset as provided under Title IX of EGTRRA, which provides that the amendments shall not apply to taxable, plan, or limitation years beginning after December 31, 2010.

TITLE II--UNIFORM DEFINITION OF CHILDUniform Definition of Child, Etc.

The Act creates a uniform definition of a "qualifying child" for purposes of the dependency exemption, child credit, earned income credit, dependent care credit, and head of household filing status. Under the uniform definition, a child would be a qualifying child of the taxpayer if the child: (1) has the same principal place of abode as the taxpayer for more than one half of the taxable year; (2) has a specified relationship to the taxpayer; and (3) has not yet attained a specified age. The Act provides that present-law support and gross income tests would be inapplicable to a child that meets the uniform definition.

The Act does not treat temporary absences due to special circumstances such as illness, education, business, vacation, or military service as absences for purposes of the residency requirement. Qualifying "specified relationships" to the taxpayer includes son, daughter, stepson, stepdaughter, brother, sister, stepbrother, stepsister, or a descendant of any such individual. Legally adopted children (included those lawfully placed with the taxpayer for legal adoption) and foster children are treated as children of the taxpayer. Under the Act, a legally adopted child that does not satisfy the present citizenship or residency requirement may be a qualifying child if the child's principal place of abode is the taxpayer's home and the taxpayer is a U.S. citizen or national.

The Act requires that a child be under age 19 (or 24 if a full-time student) for the dependency exemption, earned income credit, and head of household filing status, age 13 for the dependent care credit, and age 17 for the child tax credit. However there is no age limit for individuals who are deemed totally and permanently disabled under §22(e)(3), except in the case of the child tax credit. The Act provides that a child that provides more than one half of his or her own support would not be considered a qualifying child (except for purposes of the earned income tax credit).

If a child may be a qualifying child with respect to more than one taxpayer and more than one person claims a benefit with respect to the child, then: (1) when only one taxpayer would be a parent of the child, the child is deemed a qualifying child of the parent; (2) when both parents claim the child and do not file a joint return, the child is deemed a qualifying child first with respect to the parent with whom the child resides for the longest time, and secondly with respect to the parent with the highest adjusted gross income; and (3) when neither parent is a claimant, then the child is a qualifying child with respect to the claimant with the highest adjusted gross income.

The provision also modifies the structure of the custodial waiver rules under which a custodial parent may release the claim to a dependency exemption to a noncustodial parent. As modified, the waiver rules provide that if a waiver is made, applies for purposes of whether a child is a qualifying child, and therefore, such waiver applies for the dependency exemption and the child credit (which requires that a dependency exemption be made for the child), but not for the earned income credit, head of household status, or dependent care credit.

The Act provides that a taxpayer may claim head of household filing status only with respect to a qualifying child or an individual for whom the taxpayer is entitled to a dependency exemption. The provision modifies the definition of "head of household" to require that the taxpayer be unmarried (and not a surviving spouse) and that the taxpayer pay more than one-half of the cost of maintaining his or her home that is the principal place of abode for more than half the year for a qualifying child or other individual for whom the taxpayer may claim a dependency exemption.

The Act eliminates the present-law requirement that a taxpayer maintain a household in order to claim the dependent care credit. Thus, the Act provides that, if other applicable requirements are satisfied, a taxpayer may claim the dependent care credit with respect to a child who lives with the taxpayer for more than one-half the year, even if the taxpayer does not provide more than half of the cost of maintaining the household. The Act amends rules for determining eligibility for the credit with respect to an individual who is physically or mentally incapable of caring for himself or herself to include a requirement that the taxpayer and the dependent have the same principal place of abode for more than one-half of the taxable year.

The present-law child credit generally uses the same relationships to define "eligible child" as the uniform definition. The Act eliminates the present-law requirement that a foster child and certain other children be cared for as the taxpayer's own children. The Act retains the present-law requirement that the child must be under age 17 regardless of whether the child is disabled.

In general, the Act adopts a definition of "qualifying child" that is similar to the present-law definition under the earned income credit. The Act eliminates the present-law requirement that a foster child and certain other children be cared for as the taxpayer's own children. The Act provides that the present-law tie-breaker rule applicable to the earned income credit is used for purposes of the uniform definition of "qualifying child." The Act retains the present-law requirement that the taxpayer's principal place of abode must be in the United States.

The Act defines a dependent for purposes of the dependency exemption as a qualifying child or a qualifying relative. For the qualifying child test, the Act eliminates the support test (other than for a child who provides more than one-half of his or her own support), and replaces it with the residency requirement from the uniform definition described above. The Act provides that the present-law gross income test and the rules relating to multiple support agreements do not apply with respect to qualifying children.

Tie-breaking rules, described above in the uniform definition, apply if more than one taxpayer claims a qualifying child under the Act. The Act provides that such rules do not apply if a child constitutes a qualifying child with respect to multiple taxpayers, but only one eligible taxpayer actually claims the qualifying child.

The Act generally permits taxpayers to continue to apply the present-law dependency exemption rules to claim a dependency exemption for a qualifying relative who does not satisfy the qualifying child definition.

The Act makes several technical and conforming amendments to the Code to conform the language to the uniform definition of child, discussed above. Many of the technical amendments exclude the exceptions for ineligible and married dependents, and the income requirement for qualifying relatives, from those sections' application of the uniform definition of child.

The uniform definition of child provisions are effective for taxable years beginning after December 31, 2004.

TITLE III--EXTENSIONS OF CERTAIN EXPIRING PROVISIONSResearch Credit

The Act extends the present-law research tax credit to qualified amounts paid or incurred before January 1, 2006.

Effective for amounts paid or incurred after June 30, 2004.

The Act extends the Code provisions relating to mental health parity to benefits for services furnished on or after October 4, 2004 and before January 1, 2006. Thus, under the Act, the excise tax on failures to meet the requirements imposed by the Code provisions does not apply after December 31, 2003, and before October 4, 2004. The Act also extends the Employee Retirement Income Security Act of 1974 (ERISA) and Public Health Service Act (PHSA) provisions relating to mental health parity to benefits for services furnished before January 1, 2006. Effective on October 4, 2004.

The Act extends the work opportunity and the welfare-to-work tax credits for two years, through December 31, 2005.

Effective for wages paid or incurred for individuals beginning work after December 31, 2003.

The Act extends the authority to issue qualified zone academy bonds through 2005. Qualified zone academy bonds are bonds issued by a state or local government, if at least 95% of the proceeds are used for one or more qualified purposes of a qualified zone academy and private entities have promised to contribute certain equipment, technical assistance or training, employee services, or other property or services worth at least 10% of the bond proceeds. A total of $400 million of qualified zone academy bonds was authorized to be issued annually in calendar years 1998 through 2003.

Effective for obligations issued after December 31, 2003.

The Act extends the cover over (payment) amount to Puerto Rico and the Virgin Islands of $13.25 per proof gallon for rum brought into the United States after December 31, 2003, and before January 1, 2006, regardless of the country of origin. After December 31, 2005, the cover over amount reverts to $10.50 per proof gallon.

Effective for articles brought into the United States after December 31, 2003.

The Act extends the deduction to contributions made in taxable years beginning before January 1, 2006.

Effective for contributions made in taxable years beginning after December 31, 2003.

The Act extends the $250 above-the-line deduction for expenses of eligible educators for two years, to include taxable years beginning in 2004 and 2005.

Effective for expenses paid or incurred in taxable years beginning after December 31, 2003.

Taxpayers can elect to treat certain environmental remediation expenditures that would otherwise be chargeable to capital account as deductible in the year paid or incurred. This deduction applies for both regular and alternative minimum tax purposes. The Act extends this expensing provision for two years, through December 31, 2005.

Effective for expenses paid or incurred after December 31, 2003.

The Act extends authority to issue New York Liberty Bonds through 2009, extends authority to issue advance refund bonds through 2005, and makes the Municipal Assistance Corporation eligible for issuing advance refunding bonds.

Effective on October 4, 2004, except provision for advance refunding of Municipal Assistance Corporation bonds is effective as if included in the amendments made by §301 of the Job Creation and Worker Assistance Act of 2002.

The Act extends the D.C. Zone designation and tax-exempt financing incentives for two years (through 2005), extends the date before which a D.C. Zone asset must be acquired for purposes of utilizing the zero-percent capital gains rate for two years (to January 1, 2006), and extends the period within which gain is treated as qualified capital gain for two years (through 2010). The Act also extends the nonrefundable first-time homebuyer credit of up to $5,000 for two years (through 2005).

Effective January 1, 2004, except provision to extend the expanded D.C. tax-exempt financing incentives applies to obligations issued after October 4, 2004.

The Act provides authority through December 31, 2005, for any state to participate in a combined federal and state employment tax reporting program, provided that the program has been approved by the Secretary.

Effective on October 4, 2004.

The Act extends the provision allowing an individual to offset the entire regular tax liability and alternative minimum tax liability by those personal nonrefundable credits that are not allowable to that extent (i.e., those other than the adoption credit, child credit, and credit for savers) for taxable years beginning in 2004 and 2005. Effective for taxable years beginning after 2003.

The Act extends the credit for electricity produced from qualified wind energy facilities, qualified closed-loop biomass facilities, or qualified poultry waste facilities, to include facilities placed in service before 2006.

Effective for facilities placed in service after 2003.

The Act extends the suspension of the 100%-of-net-income limit on the amount deductible for marginal wells in any year under the percentage depletion method, to tax years beginning before 2006.

Effective for tax years beginning after 2003.

The Act extends the Indian employment credit incentive for one year, to tax years beginning before 2006.

Effective on October 4, 2004.

The Act extends eligibility for the accelerated depreciation schedule to "qualified Indian reservation property" placed in service before January 1, 2006 (rather than before January 1, 2005, as under current law).

Effective on October 4, 2004.

The Act extends the exception to the prohibition on disclosure of return information for carrying out income-contingent repayment of student loans through December 31, 2005. Under current law, disclosure can only be made under the exception through December 31, 2004.

Effective on October 4, 2004.

The Act repeals the phase-down of the credit for the cost of qualified electric vehicles for 2004 and 2005. Under current law, the 10% credit (capped at $4,000) is reduced by 25% for property placed in service in 2004 and by 50% for property placed in service in 2005. The Act allows a taxpayer to claim 100% of the credit for a qualified electric vehicle purchased in 2004 and 2005. For vehicles purchased in 2006, however, the credit is reduced by 75%, as under current law.

Effective for vehicles placed in service after December 31, 2003.

The Act repeals the phase-down of the deduction for the cost of qualified clean-fuel vehicle property for 2004 and 2005. Under current law, the maximum amount of the deduction ($50,000, $5,000, or $2,000, depending on the gross weight and seating capacity of the vehicle) is reduced by 25% for property placed in service in 2004 and by 50% for property placed in service in 2005. The Act allows a taxpayer to claim 100% of the otherwise-allowable deduction for vehicles purchased in 2004 and 2005. For vehicles purchased in 2006, however, the otherwise-allowable deduction is reduced by 75%, as under current law.

Effective for vehicles placed in service after December 31, 2003.

The Act extends the disclosure authority relating to terrorist activities. No disclosures can be made after December 31, 2005. Further, the Act makes a technical change to clarify that a taxpayer's identity is not treated as taxpayer return information for purposes of disclosures to law enforcement agencies regarding terrorist activities.

The provision extends authority is effective for disclosures made on or after October 4, 2004. The technical change is effective as if included in the Victims of Terrorism Tax Relief Act of 2001.

The Act provides that the joint review required by §8021(f)(2) to be made before June 1, 2004, is treated as timely if made before June 1, 2005.

The Act extends Archer MSAs through December 31, 2005, and also provides that the reports required by MSA trustees for 2004 is to be treated as timely if made within 90 days after October 4, 2004 [i.e. January 2, 2005]. In addition, under the Act, the determination of whether 2004 is a cut-off year and the publication of such determination is to be made within 120 days of October 4, 2004 [i.e., February 1, 2005]. If 2004 is a cut-off year, the cut-off date would be the last day of such 120-day period.

Generally effective on January 1, 2004, but the provisions relating to reports and the determination by the Secretary are effective on October 4, 2004.

TITLE IV--TAX TECHNICAL CORRECTIONSAmendments Related to Medicare Prescription Drug, Improvement, and Modernization Act of 2003

The Act amends the 2003 Medicare Act, §1201, by adding to the list of exceptions under §26(b)(2) the tax imposed under §223(f)(4) (relating to additional tax on health savings account distributions not used for qualified medical expenses), thus exempting that tax from the §26(b)(1) definition of "regular tax liability." Further, the Act amends the 2003 Medicare Act, §1201, so that §35(g)(3) provides that amounts distributed from an Archer MSA or from a health savings account will not be taken into account under §35(a).

These amendments take effect as if included in the 2003 Medicare Act, §1201.

The Act amends JGTRRA, §302, to provide that, in any case in which: (1) a dividend is received from a regulated investment company (other than a dividend to which §854(a) applies); (2) the investment company meets the §852(a) requirements for the taxable year during which it paid the dividend; and (3) the qualified dividend income of the investment company for that taxable year is less than 95% of its gross income, then, in computing qualified dividend income, there is taken into account only that portion of such dividend designated by the regulated investment company. Further, the Act provides that: (1) the aggregate amount that may be designated as dividends under §854(b)(1)(A) does not exceed the aggregate dividends received by the company for the taxable year; and (2) the aggregate amount that may be designated as qualified dividend income under §854(b)(1)(B) does not exceed the sum of (a) the company's qualified dividend income for the taxable year and (b) the amount of any earnings and profits that were accumulated and distributed by the company for the taxable year, to which Subchapter M, Part 1, did not apply.

The Act amends JGTRRA, §302, to provide that, relative to §1(h)(11) (dividends taxed on net capital gain), in any case in which: (1) a dividend is received from a real estate investment trust (other than a capital gain dividend); and (2) the trust meets the §856(a) requirements for the taxable year during which it paid such dividend, then, in computing the qualified dividend income, there will be taken into account only that portion of the dividend designated by the real estate investment trust. Section 857(c)(2) will also contain the definition of "qualified dividend income" and a requirement to provide notice to shareholders of the amount that may be taken into account as qualified dividend income.

Finally, the Act amends JGTRRA, §302, to make several additional technical changes to §1(h)(1), (10), and (11).

Effective as if included in JGTRRA, §302.

The Act makes a number of technical corrections related to the Job Creation and Worker Assistance Act of 2002.

The Act clarifies the type of property that is eligible for bonus depreciation by amending §168(k)(2)(B) to define "qualified property" as including property that is subject to the §263A capitalization requirements and is described in the provisions requiring an estimated production period exceeding two years or an estimated production period exceeding one year and a cost of $1 million. The Conference Report states that §101 of the 2002 Act could be interpreted to exclude such property from bonus depreciation, even though that result was not intended by Congress.

The Act also corrects the 2002 amendments to §172(b) that allowed a temporary five-year carryback of NOLs. The Conference Report notes that the 2002 legislation was enacted after some taxpayers had filed their 2001 returns on which they elected to forego an NOL carryback. The technical correction clarifies that taxpayers had until October 31, 2002 to revoke the election, as well as to elect to disregard the five-year carryback period, and to use the tentative carryback adjustment procedures of §6411.

The Act also addresses ambiguities in the 2002 Act provisions for New York Liberty Zone bonus depreciation. Section 301 of the 2002 Act has been amended to provide that the additional first-year depreciation does not apply to any property if the user or a related party had a written binding contract for the acquisition of the property that was in effect at any time before September 11, 2001. The Act also provides that if: (1) property was originally placed in service by a lessor; (2) such property was sold within three months of being placed in service; and (3) the user of the property did not change, then the property is treated as being placed in service by the taxpayer not earlier than the date of the sale. The Act also clarifies that Liberty Zone property qualifies for both the additional first-year depreciation and the additional §179 expensing.

The Act also amends §1400L(c), which provides a five-year recovery period for certain leasehold improvement property placed in service in a New York Liberty Zone. As enacted in 2002, §1400L(c) does not allow an election out of this rule. The Act permits an election out.

Finally, the Act makes several conforming changes to the ERISA reporting requirements to reflect the 2002 Act's increase in the interest rate used to determine the amount of unfunded vested benefits for PBGC premiums for plan years beginning in 2002 or 2003.

The Act makes technical corrections to the Economic Growth and Tax Relief Reconciliation Act of 2001. Section 637 of the 2001 Act has been amended to revise the definition of compensation for purposes of contributions to a SIMPLE plan to make it clear that the definition includes wages paid to domestic workers, even though such wages are not subject to withholding.

In addition, clarifying and conforming amendments have been made to the provisions for Coverdell education savings accounts, the cost-of-living adjustment for the Indian employment credit, the rounding rule for the dollar limitation on plan benefits and contributions under §415, the excise tax on nondeductible contributions to qualified plans, and the rollover rules for qualified plans.

The amendments take effect as if included in the provisions of the 2001 Act.

The Act contains a number of technical amendments to provisions of the Taxpayer Relief Act of 1997. The Act: (1) clarifies the circumstances under which the designation of a new beneficiary of a §529 plan would result in the imposition of gift or generation-skipping transfer tax; (2) clarifies an exception to the additional tax on certain distributions from a Coverdell education savings account; (3) clarifies that the basis of S corporation stock is not affected by a qualified zone academy bond credit that is passed through to a shareholder; (4) clarifies that the §1259(c)(3) exception to constructive sale treatment to make it clear that the exception applies to all closed transactions, including reestablished positions that are closed; and (5) clarifies the maximum amount of adjusted net capital gain eligible for the 5% rate under the alternative minimum tax.

All these amendments are effective as if included in the 1997 Act.

The Act amends the S corporation post-termination transition period provisions of §1377(b) to make it clear that the 120-day period added by the 1996 Act: (1) does not apply for the purpose of allowing the deduction of suspended losses; and (2) allows tax-free distributions of money by the corporation only to the extent of any increase in the accumulated adjustments account by reason of an audit adjustment.

The Act also repeals §401(a)(26)(C) as deadwood, in light of the 1996 Act's amendment of §401(a)(26) so that it no longer applies to defined contribution plans.

Both amendments are effective as if included in the 1996 Act.

The Act makes clerical amendments to various Code sections and other laws.