On May 23, 2018 the U.S. Department of Treasury and the Internal Revenue Service issued Notice 2018-54, which announced new proposed regulations addressing state and local tax payment deductions for federal income tax purposes.
The 2017 Tax Cuts and Jobs Act places limits on an individual’s deduction to $10,000 ($5,000 in the case of a married individual filing a separate return) for the aggregate amount of state and local taxes paid during the calendar year. Any state and local tax payments above those limitations are no longer deductible. This new limitation is effective January 1st, 2018 and applies to taxable years after December 31, 2017 and before January 1, 2026. This limitation will have implications for many Nebraska residents according to data research by The Pew Charitable Trusts. Based on IRS data from 2015, 28 percent of Nebraskans claimed a state and local tax deduction amount higher, than $10,000.
Several state legislatures, in response to this limitation, are considering adopting legislative proposals that would allow taxpayers to make transfers to funds controlled by state or local governments, in exchange for credits against the state or local taxes already required. New York, Connecticut, and New Jersey, states known for having higher state taxes, have already enacted measures that allow taxpayers to fund municipal governments by making charitable donations that are both fully federal income tax deductible and satisfy state and local tax liabilities. In these states, a taxpayer would be able to apply any amount of state and local taxes over $10,000 toward a municipal government fund and report the transfer as a charitable donation. The treatment of these state and local tax payments as charitable contributions effectively reduces the taxpayer’s federal income tax liability.
Notice 2018-54 informs taxpayers that the upcoming proposed regulations will assist them in understanding the relationship between federal charitable contribution deductions and the state and local tax payment deduction. The notice also warns taxpayers to be mindful and cautious in making such transfers or donations, and to remember that federal laws control the proper characterization of payments for federal income tax purposes. Finally, the Notice states the proposed regulations intend to clarify the requirements of the Internal Revenue Code, and that “substance-over-form” principles govern the federal income tax treatment of such transfers. In colloquial terms the Treasury and IRS are stating that “if it looks, smells and operates like a state tax deduction those payments will most likely be characterized as state tax deductions with the applicable deduction limits.
 Phillip Oliff & Brakeyshia Samms, Cap on the State and Local Tax Deduction Likely to Affect States Beyond New York and California, The Pew Charitable Trusts (Apr. 10, 2018) http://www.pewtrusts.org/en/research-and-analysis/analysis/2018/04/10/cap-on-the-state-and-local-tax-deduction-likely-to-affect-states-beyond-new-york-and-california.
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