(Note: For an updated discussion of the final 2017 GOP Tax Plan, see Individual Tax Planning Under The Tax Cuts And Jobs Act Of 2017.)
A key aspect of proposed tax reforms, ever since President Trump was on the campaign trail, was the possibility of reducing the tax rate on pass-through business entities like S corporations, LLCs, and partnerships. To some, the tax break was intended as an incentive for small business growth. For others, it was viewed as a necessity when proposed corporate tax reform and lower tax rates for C corporations would effectively put pass-through entities at a disadvantage without a similar break. Either way, there has been substantial momentum on the proposal, which was codified in both the House and Senate versions of the Tax Cuts and Jobs Act.
However, a key caveat of creating favorable treatment for pass-through businesses is to not unwittingly convert personal labor income – i.e., wages or self-employment income – into pass-through income eligible for favorable rates. Which at the least can distort the relative incentives of being an employee (paid as wages) versus self-employed (paid through a pass-through business entity). And at worst could incentivize employees to literally quit their jobs and try to get rehired as independent consultants – and paid through shell pass-through businesses – just to obtain favorable rates.
As a result, both the House and Senate proposals under the Tax Cuts and Jobs Act would limit the availability of the pass-through for so-called “service businesses”, either by eliminating the favorable rates for those who are “active participants” in a pass-through service business (in the House version), or simply eliminating the preferential treatment altogether for pass-through service businesses (in the Senate version).
Yet in practice, the actual mechanisms that both the House and Senate have created impose substantial economic burdens on large service businesses. Founder/employees of large service businesses (e.g., with $10M+ of employment income) can actually face marginal tax rates of 100%, 200%, or more on their wages as a leader of the firm, because their employment in their firm converts all their non-wage business income into less-favored ordinary income (under the House proposal). Large service businesses that want to scale may struggle to attract capital if their profits are literally “less valuable” on an after-tax basis to outside investors when all service business income is taxed less favorably (under the Senate proposal). And service businesses that also have non-service business lines will find their non-service income (otherwise eligible for favorable rates) becoming “tainted” by being wrapped under a service business.
Which means ultimately, if the goal is to reasonably separate “labor income” from “capital income” without distorting large service businesses, it’s necessary to adapt the rules further. One option is to simply codify a requirement that in service businesses, “reasonable compensation” must be paid (and taxed as wages), with only the excess eligible for favorable pass-through treatment (perhaps with a safe harbor to stipulate that any excess above a certain level of income is automatically eligible for pass-through treatment). Or alternatively, Congress could actually designate a “qualifying large service business” (e.g., with at least $10M of revenue and 30+ employees) that is automatically deemed to qualify its business income as favorable pass-through income (as such businesses typically already have governance mechanisms in place to ensure owner-employees are paid properly as owners for their labor, and separately for their pass-through business profits).
Without some solution, though, service businesses face substantial disadvantages in attracting capital, and/or outright disincentives for founders to continue to work – potentially with marginal tax rates in excess of 100%! Or alternatively, the current proposals may simply drive large service businesses to all recharacterize themselves as C corporations, in a world where the corporate tax rate would be dramatically lower (and even if the firm was deemed a Personal Service Corporation, would be taxed more favorably than a pass-through service business if top corporate tax rates are only 20%). Which would then disadvantage any service businesses that couldn’t effectively reorganize as a C corporation.
The bottom line, though, is simply to recognize that while it’s an important matter of tax policy to tax labor income as labor income, and business income as business income… the reality is that in large service businesses, the profits of the business are substantially attributable to investments in capital (albeit human capital), and not just the fruits of an owner-employee’s personal labor. Good tax policy must recognize that difference.