Maryland updates Pass-through Entity Tax Meant to Circumvent the Federal SALT Limitation

On May 7, 2020, Maryland joined states such as Connecticut, Louisiana, New Jersey, Oklahoma, and Wisconsin, to enact an elective pass-through entity tax to circumvent the $10,000 state and local tax (SALT) cap. While the IRS rendered other state and local tax workarounds ineffective, such as the state charitable deduction. The adoption of a state level pass-through entity tax (PET) results in the imposition of the income tax at the entity level. A PET also allows the business entity to claim the state tax deduction on a federal income tax return, which is not subject to the Tax Cuts and Jobs Act $10,000 limitation placed on individuals.

Currently, the IRS has not issued guidance limiting the use of the pass-through entity tax as workarounds. This being the case, there are certain elements to a state PET that may lead to the same IRS denial as charitable deductions:

  1. The expansion of the PET to income of residents is elective;
  2. Different tax rates apply, depending on the type of taxpayers that own the pass-through entity (i.e. individual or corporate);
  3. The PET does not apply to any portion of income attributable to a member that is also a pass-through entity;
  4. Non-resident individuals and corporations that own a pass-through entity that makes the PET election still have a filing obligation, even if the owner has no other Maryland source income; and
  5. Individual and corporate owners of a pass-through entity that makes the PET election are required to claim a credit for the tax paid by the pass-through entity instead of an income back out.

Putting aside the IRS taking aim at State PETS, Maryland together with the other states will continue to use it as a viable workaround for SALT.