Included with the passage of the Tax Cuts and Jobs Act, was a new 20% tax deduction for “Qualified Business Income” (QBI) for pass-through entities, which was intended to give a tax break to small business owners and encourage them to hire more employees. The caveat, however, was that Congress also made sure that the deduction didn’t extend to high-income professionals whose primary source of income was from their own personal labors.
Accordingly, Congress carved out a new group of professionals in certain “Specified Service Trade or Businesses” (SSTB) whose qualification for the QBI deduction would be phased out above certain income levels.
Unfortunately, businesses in the financial services industry were included in the definition of SSTBs, particularly financial services, brokerage services, as well as “any trade or business which involves the performance of services that consist of investing and investment management, trading, or dealing in securities.”
Interestingly, however, Congress seems to have gone out of their way to specifically exclude from that list insurance producers, brokers, and agents, who are treated as being in the business of selling their company’s products, rather than their personal services.
In this week’s #OfficeHours with @MichaelKitces, my Tuesday 1 PM EST broadcast via Periscope and guest hosted this week by Jeff Levine, we examine questions surrounding the QBI deduction for professionals who sell insurance products and want to retain the benefits of the QBI deduction, but are also involved in brokerage services and/or are RIA owners with SSTB income not eligible, and explore when/whether it’s better to run multiple businesses to preserve the deduction where permitted… and if so, at what cost?
The strategy of separating out QBI-eligible insurance business from non-QBI-eligible brokerage commissions and advisory fees is complicated by the fact that, in recent proposed regulations on the QBI deduction, the IRS declared that single businesses with multiple business lines and total revenues under $25 million, the entire business is considered to be a specified service trade or business if more than 10% of their income results from investment-related activities. Which means, for instance, that for someone with 89% of their income from their insurance-related activities and the rest from investment-related activities, their entire business will be considered an SSTB if they operate it as a single business (which means none of their 89%-of-revenue insurance commissions would be eligible for the deduction)!
Accordingly, the question then becomes: “When/how would it be better to split out the insurance production into a different business line, and effectively run multiple businesses?” Unfortunately, there’s no easy answer, because not only does running multiple businesses create a whole new layer of complexity and expense due to the potential need to keep separate books and records, but it also requires the business owner to allocate how much of their overhead costs apply to both the QBI-eligible insurance revenue and non-QBI-eligible other revenue. Which in turn raises the specter of potential IRS audits, since the business owner might be tempted to attribute as much expense as possible to the (not-QBI-eligible) financial services business income (which is SSTB income), while trying to minimize the expenses (and maximize the income) derived from the non-SSTB (QBI-eligible) insurance business line.
Ultimately, the good news is that it is theoretically possible to separate out and preserve the QBI deduction for insurance commissions, even for advisory firm business owners with a mixture of insurance and non-insurance business. But the aggregation rules of the recent QBI regulations mean that doing so will require a whole new layer of complexity for financial advisors to actually run two bona fide separate businesses, one for their insurance income (and expenses), and a second one for everything else. Which is a challenge because in the process of splitting up the business lines in order to qualify for the QBI deduction, the reality is that, after you factor in all the added expense and work involved, it just may not be worth it in the end unless there is a substantial amount of insurance commissions on the table!