Earlier today Georgia enacted into law its response to the recent federal changes in the tax code. Specifically, Georgia’s response is set forth below:
The Governor signed House Bill 918 into law which is the annual Internal Revenue Code update. Consequently, for taxable years beginning on or after January 1, 2017, except as discussed below, Georgia has adopted the provisions of all federal tax acts (as they relate to the computation of Federal Adjusted Gross Income or Federal Taxable Income for corporations) that were enacted on or before February 9, 2018. For 2017, for both federal and Georgia purposes, the I.R.C. Section 179 deduction is limited to $510,000 and the related phase out is $2,030,000. For 2018, Georgia has adopted the increased I.R.C. Section 179 deduction of $1M as well as the $2.5M phaseout. Georgia has not, however, adopted the Section 179 deduction for certain real property (I.R.C. Sections 179(d)(1)(B)(ii) and 179(f)).
For losses incurred in taxable years ending after December 31, 2017, Georgia follows the new federal laws relating to no carryback and unlimited carryforward of net operating losses and also adopts the 2 year carryback for farming losses and the 2 year carryback and 20 year carryforward for certain insurance company net operating losses.
For losses incurred in taxable years beginning on or after January 1, 2018, Georgia follows the 80% limitation on the usage of net operating losses (the state 80% limitation is based on Georgia taxable net income). As with federal law, the state 80% limitation does not apply to certain insurance company net operating losses.
While Georgia adopts many federal provisions, Georgia has not adopted I.R.C. Section 168(k) (the 30%, 50% and 100% bonus depreciation rules) and Georgia has not adopted I.R.C. Section 199 (federal deduction for income attributable to domestic production activities).
Georgia has also not adopted the following:
- 20% qualified business income deduction, I.R.C. Section 199A.
- 30% limitation on business interest (Georgia follows the provisions of I.R.C. Section. 163(j) that existed before enactment of federal Public Law 115-97).
- New 2017 rules relating to contributions to capital (Georgia follows the provisions of I.R.C. Section 118 that existed before enactment of federal Public Law 115-97). Therefore, the value of land or other property contributed to a corporation by a governmental unit or by a civic group for the purpose of inducing the corporation to locate its business in a particular community, or to enable the corporation to expand its operating facilities, is still treated as a tax-free contribution to capital by a nonshareholder, rather than as a contribution in aid of construction (CIAC). In addition, the exception still applies under which money or property received as a CIAC from any person (whether or not a shareholder) by a regulated public utility that provided water or sewerage disposal services is still nontaxable, provided that certain requirements are met. However, no deduction can be taken by the contributor and the basis of property contributed as a nontaxable CIAC is zero.
- Deferral of debt income from reacquisitions of business debt at a discount in 2009 and 2010 which is federally deferred for up to five years, then included ratably over five years, I.R.C. Section 108(i).
- Modified rules for high yield original issue discount obligations, I.R.C. Sections 163(e)(5)(F) and 163(i)(1).
- New York Liberty Zone Benefits, I.R.C. Section 1400L.
- 50% first year depreciation for post 8/28/2006 Gulf Opportunity Zone property, I.R.C. Section 1400N(d)(1).
- 50% bonus depreciation for most tangible property and computer software bought after May 4, 2007 and placed in service in the Kansas Disaster Area, I.R.C. Section 1400N(d)(1).
- 50% bonus depreciation for “qualified reuse and recycling property”, I.R.C. Section 168(m).
- 50% bonus depreciation in connection with disasters federally declared after 2007, I.R.C. Section 168(n).
- Increased ($8,000) first-year depreciation limit for passenger automobiles if the passenger automobile is “qualified property,” I.R.C. Section 168(k).
- For assets placed in service on or before December 31, 2017, 15 year straight-line cost recovery period for certain improvements to retail space, I.R.C. Sections 168(e)(3)(E)(ix), 168(e)(8), and 168(b)(3)(I).
- For assets placed in service on or before December 31, 2017, modified rules relating to the 15 year straight-line cost recovery for qualified restaurant property (allowing buildings to now be included), I.R.C. Section 168(e)(7).
- 5 year depreciation life for most new farming machinery and equipment, I.R.C. Section 168(e)(3)(B)(vii).
- Special rules relating to Gulf Opportunity Zone public utility casualty losses, I.R.C. Section 1400N(j).
- 5 year carryback of NOLs attributable to Gulf Opportunity Zone losses, I.R.C. Section 1400N(k).
- 5 year carryback of NOLs incurred in the Kansas disaster area after May 3, 2007, I.R.C. Section 1400N(k).
- The election to deduct public utility property losses attributable to May 4, 2007 Kansas storms and tornadoes in the fifth tax year before the year of the loss, I.R.C. Section 1400N(o).
- Temporary tax relief provisions relating to the Midwestern disaster area, I.R.C. Sections 1400N(f) and 1400N(k).
Depreciation Differences. Depreciation differences due to the federal tax acts mentioned above should be treated as follows (if the taxpayer has depreciation differences from more than one federal tax act, it is not necessary to make a separate adjustment for each act):
- Depreciation must be computed one way for federal purposes and another way for Georgia purposes. Taxpayers should attach the current year IRS Form 4562 to the Georgia return. Federal depreciation should be added back to Georgia income by entering it on the other addition line of the return.
- Depreciation must then be computed for Georgia purposes on Georgia Form 4562 which should be attached to the Georgia return. Georgia depreciation should be entered on the other subtraction line of the return.
Federal deduction for income attributable to domestic production activities (IRC Section 199). This adjustment should be entered on the addition line of the applicable return. An adjustment to the Georgia partnership or S corporation return is not required if the partnership or S corporation is not allowed the Section 199 deduction directly, but instead passes through the information needed to compute the deduction to the partners or shareholders.
Other Differences. Other differences should be placed on the other addition or subtraction line of the applicable return. Attach a statement to the return explaining these differences.
Additionally, decoupling from certain federal provisions may have other effects on the calculation of Georgia taxable income. Adjustments for the items listed below should be added or subtracted on your Georgia income tax form, as appropriate.
- When property is sold for which federal bonus depreciation was claimed, there will be a difference in the gain or loss on the sale of the property for Georgia purposes.
- The depreciation adjustment for Georgia may be different if the taxpayer is subject to the passive loss rules and is not able to claim the additional bonus depreciation on the federal return.
- Other federal items that are computed based on Federal Adjusted Gross Income (FAGI) or Federal Taxable Income (FTI) will have to be recomputed if FAGI or FTI are affected by provisions from which Georgia has decoupled.
Also, in 2003 the IRS started requiring separate reporting, to shareholders of S corporations and partners of partnerships, for the gain from asset sales for which an I.R.C. Section 179 deduction was claimed. Georgia follows the separate reporting treatment of the gain and the Section 179 deduction. Accordingly, the gain should not be reported directly on the S corporation or partnership return, but the gain, along with any Georgia adjustment to the gain (due to the federal tax acts), should be reported separately to the shareholders or partners.
Finally, Georgia has adopted certain federal provisions which were enacted in 2016 to assist combat-injured veterans to recover income taxes that were improperly collected by the Department of Defense (DOD) on certain disability severance payments. Like the federal law, the bill extends the 3-year period for filing a refund claim with Georgia to the same date that is allowed federally (the date that is one year after DOD provides the veteran with the information required under the federal provision).