Alternative Minimum Tax. Effective for taxable years beginning after December 31, 2017, the TCJA permanently eliminated the corporate alternative minimum tax.
Limitation on Deductibility of Business Interest. Under the TCJA, in general, the deductibility of net interest for a business, other than certain small businesses, is limited to 30% of the business’s adjusted taxable income (i.e., business taxable income computed without regard to business interest income or deductions, NOL deductions, any deduction for domestic production activities, or the 20% deduction for qualified business income). Interest that is disallowed can be carried forward indefinitely. However, a “real property trade or business” is permitted to elect to deduct 100% of its interest expense. That election is irrevocable. If such an election were made, the electing “real property trade or business” would be required to use the less favorable alternative depreciation system to depreciate real property used in the trade or business. A “real estate trade or business” is any real property development, redevelopment, construction, reconstruction, acquisition, conversion, rental, operation, management, leasing, or brokerage trade or business. For tax years beginning after December 31, 2017 and before January 1, 2022, the TCJA calculates adjusted taxable income using a tax EBITDA-based calculation. For tax years beginning January 1, 2022 and thereafter, the calculation of adjusted taxable income will not add back depreciation or amortization. There is no rule grandfathering existing debt.
Depreciation of Real Property. We believe the TCJA was intended to reduce the recovery period under the modified accelerated cost recovery system (“MACRS”) for qualified improvement property to 15 years. However, due to what is believed to be a drafting error in the statutory language of the TCJA, the Internal Revenue Service will continue to apply a recovery period of 39 years under the MACRS for qualified improvement property, unless and until Congress passes technical correction legislation. Qualified improvement property is any improvement to the interior portion of a building which isnon-residential real property if such improvement is placed in service after the date the building was first placed in service subject to certain exceptions. The TCJA made no change to the MACRS recovery periodfor non-residential real property (39 years) and residential real property (27.5 years). Under the TCJA, the alternative depreciation system lives are as follows: 30 years for residential real property, 40 years fornon-residential property, and 40 years for qualified improvement property (unless and until Congress passes technical correction legislation, in which case it will be 20 years).
Net Operating Loss Deduction. Under amendments made by the TCJA to Section 172 of the Code, the deduction for any NOL carryforwards arising from losses sustained in taxable years beginning after December 31, 2017 is limited to 80% of REIT taxable income (determined without regard to the deduction for dividends paid), and any unused portion of losses arising in taxable years ending after December 31, 2017 may not be carried back, but may be carried forward indefinitely.
Like-Kind Exchanges. The TCJA modifies the like-kind exchange provisions by restricting the preferential tax treatment applicable to like-kind exchanges to exchanges of real property not held primarily for sale. Previously, the like-kind exchange provisions also applied to personal property not held for sale. Accordingly, any personal property included in a real property exchange no longer will qualify for deferred treatment under these provisions. This change applies to exchanges completed after December 31, 2017.