Final 199A Regulations – Good News and Bad News

The IRS released the final 199A regulations on Friday and as expected there is both good news and bad news. Over the next few days we will do additional posts on some of the major changes.

In today’s post we will primarily review the changes related to rental income for farmers and landlords since that is what most everyone has been waiting for.

First the good news. The IRS did provide for a safe harbor on rental income. Notice 2019-7 states that a rental activity will automatically be QBI if for each real estate enterprise the following applies:

Separate books and records are maintained for each real estate enterprise. You can either maintain this for each rental property or elect to combine all rental properties into one “enterprise”. Commercial and residential real estate must be maintained in separate enterprises.

For each real estate enterprise, you must provide at least 250 hours of actual work. This must be work related to maintaining the real estate. This includes (1) advertising to rent, (2) negotiating and executing leases, (3) verifying information, (4) collection of rent, (5) daily operation, maintenance and repair of property, (6) management of real estate, (7) purchase of materials, and (8) supervision of employees and independent contractors.

It does not include any hours related to financial or investment management services such as arranging financing; procuring property; studying and reviewing financial statements or reports on operations; planning, managing, or construction long-term capital improvements; or hours spent on traveling to or from the real estate.

You must do this for each year between 2019 and 2022, whereas starting in 2023, you only need these hours in three out of five years.

The taxpayer must maintain contemporaneous records, including time reports documenting these hours beginning January 1, 2019.

The taxpayer must also include a statement on the return under penalties of perjury verifying that the rental enterprise meets the above requirements.

However, this safe harbor does not apply to any triple-net (NNN) leases. Therefore, it is highly unlikely that any farm cash rent landlord who leases their ground on a NNN basis will qualify for the QBI deduction. Even if they are able to prove that they worked more than 250 hours in collecting rent, arranging leases, etc. the safe harbor does not apply to them.

With regards to crop share leases, it appears the qualification as QBI will need to meet two requirements.

  • First, it can’t be a NNN crop share lease. If the landlord simply receives a share of the crop and incurs no other “crop” related expenses, then it will not be QBI.
  • Even if the landlord shares in the expenses of the crop, the IRS will likely argue that the landlord needs to spend more than 250 hours a year related to the rental arrangement. The taxpayer has the burden of proof of arguing QBI if they spend less than 250 hours. The IRS does not say it is not QBI but you have to prove it to them.

Finally, none of these rules apply to farm situations where the rent is paid via common ownership. The final regulations both provided good news and bad news for these arrangements.

First, the good news is that the final regulations expanded the definition of related parties to included brothers and sisters in most situations. Therefore, any rent paid by an individual or pass-through entity to an individual or pass-through entity under common ownership is QBI.

The bad news is that rents paid by a C corporation under common ownership will not qualify the rental income as QBI. You would need to meet the safe harbor shown above and likely in that situation the rental income at that point would become subject to self-employment tax.

This last provision likely is another reason we don’t want to have farm C corporations any more. Here are main reasons why:

  • The increase in the tax rate from 15% to 21% (or 40%) for the first $50,000 of corporation taxable income,
  • The reduction in the expensing of meals incurred for the convenience of the employer from 100% to 50%, and
  • That rental income received from the corporation is likely not QBI.

For many taxpayers, the final regulations provide good news. However, for many farmers and/or farm landlords, the news may not be so good. We will keep you posted on some of the other changes in the final regulations later this week.

  • Principal
  • CliftonLarsonAllen
  • Walla Walla, Washington
  • 509-823-2920

Paul Neiffer is a certified public accountant and business advisor specializing in income taxation, accounting services, and succession planning for farmers and agribusiness processors. Paul is a principal with CliftonLarsonAllen in Walla Walla, Washington, as well as a regular speaker at national conferences and contributor at agweb.com. Raised on a farm in central Washington, he has been immersed in the ag industry his entire life, including the last 30 years professionally. Paul and his wife purchase an 180 acre ranch in 2016 and enjoy keeping it full of animals.

Comments

Paul,
When preparing the RPE return, would I exclude their income from the QBI calculation (Box 20, Z on 1065 K-1’s) if they only receive rents from a C-Corp? I’m thinking yes, but it’s all clear as mud right now. Ready to efile as soon as I’m sure. Thanks for your opinion.

Diane, actually for 2018 you could follow the proposed regulations and still treat that as QBI. For 2019, you are out of luck unless the rentals rise to a level of a trade or business.

Taking Mr. Storhaug’s question one step further, even without the safe habor provision, wouldn’t the ongoing employment of a farm manager be sufficiently regular, systematic, and continuous to demonstrate the he is conducting a “trade or business.”

Does the 250 hour requirement include the actions of a farm manager who manages sharecrop arrangements for absentee landlords? The agent is paid, receives a 1099, manages the banking, pays all bills.

Would the 250 hour rule apply to common ownership? Just looking for further clarification on that paragraph.

No, you need no hours for common ownership.

Paul:
What about a Crop Share arrangement within a partnership where there are 3 trusts and one individual as the partners. The income beneficiary of one of the trusts does spend more than 250 hours related to the crop share and receives a wage for work done. The partners themselves do not put any time into the crop share. I’m assuming this would not qualify for QBI qualification?
Thanks,
Michael

I would say that is either a trade or business or will meet the safe harbor.

The regulations state–For each real estate enterprise, you must provide at least 250 hours of actual work. In a real estate partnership who is the “you”? If only one minority partner provides these hours does this count? If a management company is hired do their hours count? Thanks

Those hours should work. However, the safe harbor does not provide those details yet.

Thanks for the info. It sounds like bringing a rental to the level of trade or business (the 250 hours) would make it subject to SE tax in all cases except the common control scenario? Specifically, we have land held outside the operating entities, either by individuals or separate pass-through entities, primarily to protect the land but also to reduce SE tax. (I am in the 8th district.) Do you think that qualifying the rental entities income as QBI, via common ownership, now makes that rental/pass-through income subject to SE tax? Thanks again.

Paul:
My brother and I own the farmland and we have a general partnership the we do our farming business under. The partnership cash rents the farmland from each one of us. Is the cash rent we each receive a QBI. Thank you

Paul:

Thank you for your tireless work in this area. Simplification it is not. My question revolves around the paragraph in your newsletter this morning regarding payment of rents by a C-corporation. I read the Notice Saturday and I fail to see any provision that deals with this including rents paid by a C-corporation to a common ownership group that end up being subject to self-employment tax. Can you point me in the right direction? Thanks again.

The regulations on page 158 at the bottom states “if the property is rented or licensed to a trade or business conducted by the individual or an RPE which is commonly controlled..”. The final regulations added the words individual and RPE to specifically exclude C corporations. The proposed regulations simply indicated common ownership and did not specifically exclude a C corporation.