Oct. 20, 2021

Tripp Scott Tax Team Raises Flag On Proposed Tax Law Changes

The United States House Ways and Means Committee recently released a proposed legislative bill that would make substantial changes to current tax law that will significantly affect corporations, partnerships, and high-income individuals. The newly proposed tax legislation is part of the larger budget reconciliation bill that is actively being considered by Congress. If the bill is passed, two key changes to current tax law would become effective retroactively to September 13, 2021, with the vast remainder of changes becoming effective as of January 1, 2022, or upon passage of the bill. As we await the negotiation and finalization of the bill, here are some of the crucial changes and potential ramifications:

New Limitations on Section 1202 Gain Exclusion

If you are thinking that selling your business by December 31, 2021 may save you money on your income taxes, it may not be true. The new proposals in the tax bill significantly change the ability to exclude gain from the sale or exchange of qualified small business stock. Section 1202 was enacted to create an incentive for taxpayers to invest in small businesses. As the law currently stands, Section 1202 provides the ability to exclude from income any gain from the sale or exchange of C-Corporation "qualified small business stock," which is stock acquired from a domestic C-corporation that qualifies as a small business. Note, there are limitations on what is considered "stock acquired," as Section 1202 does not apply to S-Corporation stock. Gain can be excluded up to 50% for stock issued before February 18, 2009, and up to 75% for stock issued between February 18, 2009 and September 27, 2010. In 2010, the gain exclusion was increased to 100% for all original stock issued after September 27, 2010, for corporations with under fifty-million ($50,000,000) in gross assets. 

The newly proposed legislation would remove the 75% and 100% gain exclusion for taxpayers with adjusted gross income that equals or exceeds $400,000, or taxpayers that are trusts and estates, and would reduce the gain exclusion back down to 50% for all other taxpayers. Based on the current language in the bill, this amendment to Section 1202 will apply to any sales or exchanges of stock that occur after September 13, 2021, unless a written binding contract was in effect on or before September 13, 2021.

Capital Gains Rate Increase from 20% to 25% 

Under the newly proposed House bill, the top long-term capital gains rate would increase from 20% to 25%. As currently written, this change would be effective for tax years ending after September 13, 2021, with a transition period in effect for any portion of the taxable year that begins prior to September 13, 2021. The only exception to stave off this rate increase for gains recognized later in 2021 is if you had already entered into a written binding contract recognizing the transaction on or before September 13, 2021.

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Lease Agreements and Attorney Review: Invest Now or Later

SPECIAL REPORT by Tripp Scott's Matthew Zifrony as published in the FLORIDA TREND

A current or prospective tenant is presented with a lease contract with
several seemingly untenable terms. The landlord says the contract is non-negotiable. The tenant takes him at his word, quickly signs and returns the contract, and hopes nothing bad arises.

Bankruptcy Courts' Powers to Sanction Attorneys, Others Expanded by New Appellate Ruling

As Published in the Daily Business Review

An Op-Ed featuring analysis from Tripp Scott's Chuck Tatelbaum and Corey Cohen

While it has been long recognized that bankruptcy courts have the power to sanction attorneys and litigants pursuant to Rule 9011 of the Bankruptcy Rules of Procedure (a rule that is almost identical in substance to Rule 11 of the Federal Rules of Civil Procedure), a recent appellate ruling clarifies and expands the power and authority of bankruptcy courts to sanction attorneys and litigants based upon the inherent power of the bankruptcy court as well as the broad authority granted by Section 105(a) of the Bankruptcy Code. 

Critical Drafting Considerations for LLC Members' Operating Agreements

SPECIAL REPORT featuring analysis from Tripp Scott's Paul O. Lopez and Brittany Hynes

As Published in the Daily Business Review

If an operating agreement is in place and not drafted correctly, the parties could inadvertently broaden this narrow exception under Florida law and create avenues for direct claims by and between one another which are not generally available to them under the Florida Revised Limited Liability Company Act (the Revised LLC Act).

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