Maximize the General Business Credit, IRS Section 38

electric vehicle credit is part of IRS general business credit for businesses; Photo of electric car charging

Tax credits are far more valuable to businesses than tax deductions because they reduce your business tax liability dollar for dollar. For businesses, the aggregate value of tax credits may be limited by the general business credit (GBC), found in Internal Revenue Service Code Section 38. To identify more tax-saving opportunities for your business this year, maximize the GBC through strategic tax planning. 

What is in the General Business Credit?

The GBC consists of more than 30 individual tax credits that provide incentives for a variety of business activities. Examples include:

Each credit must be claimed separately, according to its specific rules and using the relevant tax forms. Taxpayers that claim more than one credit must also file Form 3800 to report the aggregate value of those credits and calculate the overall allowable credit under the GBC.

The GBC limits total credits in any given year to the excess (if any) of a taxpayer’s net income tax over the greater of:

For purposes of calculating the GBC, “net income tax” is the sum of the taxpayer’s regular tax liability and AMT liability, reduced by certain non-GBC credits. “Net regular tax liability” is regular tax liability reduced by certain credits.

The GBC limit essentially prevents taxpayers from using credits to avoid AMT. In recent years, this hasn’t been an issue for C corporations, because the Tax Cuts and Jobs Act (TCJA) repealed the corporate AMT. Although the recently enacted Inflation Reduction Act established a new corporate minimum tax for corporations with “book profits” over $1 billion for tax years beginning after December 31, 2022, it generally doesn’t limit the GBC.

The AMT for individuals still exists, although the TCJA substantially increased the AMT exemption and made other changes that mean fewer taxpayers are subject to it. Nevertheless, AMT may still limit the use of the GBC by individual taxpayers such as sole proprietors, partners and S corporation shareholders.

Tax Treatment of Unused GBC Credits

If these limits prevent a taxpayer from using all of the GBC, the unused credit may be carried back one year and then, if unused credit remains, carried forward up to 20 years. In any given year, the GBC is used in the following order:

These ordering rules essentially apply a first-in, first-out (FIFO) approach that minimizes the risk that unused credits will expire. Still, taxpayers with a large surplus of credits may risk losing credits that can’t be used within the 20-year carryforward period. Fortunately, the tax code provides some relief for taxpayers in this position.

Deduction for Unused GBC Credits

To prevent taxpayers from “double-dipping,” the tax code generally doesn’t permit them to claim a tax credit and a tax deduction based on the same expenses. In a tax year that a substantial GBC is generated, taxpayers generally must treat a portion of those expenses (equal to the amount of the credit) as nondeductible.

In many cases, when a credit is lost, Section 196 allows the lost credit amount to be claimed as a deduction. If the credit is lost because the 20-year carryforward period expires, the taxpayer may claim the deduction in the following tax year. If it’s lost because the taxpayer dies or the entity ceases to exist, the deduction may be claimed for the year of taxpayer death or business entity cessation.

The Section 196 deduction may also provide a tax-saving opportunity for C corporations contemplating a sale. It’s common for buyers to acquire a company’s stock and then make an election to treat the transaction as a deemed asset sale for tax purposes. But this can trigger substantial taxable gains for the seller. If the seller has significant unused GBCs, there may be a strategy to use the Section 196 deduction to offset some or all of those gains (because the selling corporation ceases to exist!).

You can see why strategic tax planning is important to maximize business use of the GBC. To determine how the GBC can apply to your business and calculate the applicable limits, work with your small business tax services advisor here at LvHJ. We’re available throughout the year to help you with strategic tax planning.

Source: Checkpoint Marketing

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