Freelancers and the Tax Cuts and Jobs Act of 2017

The first thing you should know is that there is a difference between itemizing on a Schedule A for things like state and local income and property taxes, medical expenses, and contributions and listing expenses on a Schedule C which is where you put the income and expenses for your freelance business. A number of people have asked what they are going to do if they can’t itemize their business expenses. The answer is that they can pretty much take the same expenses they could before for their business. They may or may not be able to itemize any more depending on their particular circumstances.

The second thing is there is now a new passthrough rule that will enable many freelancers to take a 20% deduction of their Qualified Business Income on their Schedule C’s. Effective tax year 2018, an individual taxpayer will qualify for this deduction for qualified business income (or pass-through entity deduction) This deduction will not change the amount of self-employment tax they pay but it will reduce the income tax paid.

What is a pass-through? A pass-through is any entity that passes through the income to the taxpayer. What qualifies? Schedule C income, S-corporation income and partnership income. A freelancer can be a single member LLC or simply a sole proprietor.

What is Qualified Business Income (also now known as QBI)? Look at the last line on Schedule C. If there is a positive number on that line, that will be the first number to consider qualify for the 20% deduction. Then according to the regulations published in late January 2019, subtracted from that number will be one half of self employment tax, retirement contributions, and/or health insurance deducted as adjustments to income on the new Schedule 1 of the 1040. The qbi will be the lesser of this number or of your taxable income.

How will this work: it appears that the qbi deduction will be a subtraction from what is known as “taxable income”.

Are there are any limits on this deduction: Yes. What is thought as of now is that all passthrough’s of earned income will qualify up to taxable income of $157,500 for single or $315,000 for married filing joint people. Taxable income is not adjusted gross income on page 1 of the 1040. Taxable income is the amount after the standard itemized or deductions are subtracted from the adjusted gross income and appears on the top of page two. The exception here is if you are a sub-S corporation, you are limited to the greater of 50% of the W-2 wages or 25% of the W-2 wages plus 2.5% of unadjusted basis of property.

If the threshold amounts are exceeded, reduced amounts of deductions are allowed for taxable income up to $207,500 for single people and $415,000 for married filing joint people.

For whom do the threshold amounts matter? If you are a specified service activity and earn above the threshold amounts (and phase out), you won’t be able to take the deduction. What is a specified service activity? It means activity in the fields of health, law, engineering, architecture, accounting, actuarial science, performing arts, consulting, athletics, financial services, brokerage services, including investing and investment management, trading, or dealing in securities, partnership interests, or commodities, and any trade or business where the principal asset of such trade or business is the reputation or skill of one or more of its employees.

What this means is that if you are in any of the named fields and your taxable income is more than the threshold amount or the phaseout amount, you are out of luck and don’t qualify for the deduction.

The IRS seems to have narrowed down what it means by “where the principal asset of such trade or business is the reputation or skill of one or more of its employees” in the proposed regulations to 1) endorsing products or services and 2) appearing at an event or on radio, television, or another media format. I suspect how this will be interpreted will take years to unwind. However, it is much narrower than the open ended idea that anyone with skill or knowledge would be included in the specified service categories.

Also there may be disputes as to who actually is considered in these categories.

If you earn over the threshold amount and you are not in one of the qualified service categories, you will have to be an S corporation if you’re a freelancer and there has to be W-2 wages. The qbi is 20% of your qualified business income or limited to the greater of 50% of that businesses W-2 wages or the sum of 25% of the W-2 wages plus 2.5% of the unadjusted basis immediately after acquisition of all that business’s qualified property.

If you already have an S corporation and have discovered that you will not benefit very much from the qbi deduction, you’re below the threshold amount and you’re thinking that you should go back to filing a Schedule C to get the advantage of being able to take the full qbi, be very careful. The IRS has specifically made doing this illegal and will not permit a qbi for anyone who has done this for work that is essentially the same.

Also it seems that work done outside the United States may not qualify as qualified business income and thus will not qualify for the 20% deduction. This makes sense for those people who live abroad and qualify for the foreign income exclusion and the foreign tax credit. However, it may adversely impact those who don’t.

The information here about the pass through deduction is based on Proposed Regulations that came out in 2018. The Final Regulations should be issued in early 2019. There may be changes to what is  discussed above. Further, what must be understood is that when tax bills pass, there can be years of uncertainty about certain things. This section of the law leaves many specific questions that will have to be worked out. This tax bill was passed without lengthy congressional hearings so that we don’t even have congressional intent as to what this phrase means.

These provisions expire after 2025.

It is not yet clear if any state will allow this passthrough deduction. Each state will have to issue their instructions on this for the 2018 tax season.

Otherwise filing for the 2018 tax year as a freelancer will pretty much remain the same as before with the exception that there are new rules concerning not being able to take the entertainment part of the meals and entertainment expenses. Please see “Meals and Entertainment Deductions Under the New Tax Law”.

Filing as an individual or as married filing joint people will change in many ways especially regarding itemizing on a Schedule A or taking a standard deduction and taking exemptions.

In this article, I’ve tried to cover the things that are most relevant for freelancers as freelancers. The other informatio