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CHANGES TO THE 174 DEDUCTION ARE COMING HERE 

What is the difference between 174 and the R&D credit? 

On December 22, 2017, the Trump Administration signed into law, “An Act to provide for reconciliation pursuant to titles II and V of the concurrent resolution on the budget for fiscal year 2018” (“tax reform” or the “law”). A significant component of this legislation included a provision that changed the manner in which 174 expenses (Research and Experimentation or “Research and Development” expenses) can be deducted by taxpayers for tax years beginning after December 31, 2021. 

Companies are Required to Amortize Research and Experimentation/Development 

Under current law, Section 174 generally allows taxpayers to deduct Research and Development expenditures as the amounts are paid or incurred during a tax year; alternatively, taxpayers may elect to capitalize and amortize these expenditures over a period of no less than 60 months. For most companies claiming a Research and Development Credit, it made more sense to deduct the entire amount in the year expensed, as this would lower taxable income. 

For amounts paid or incurred in a tax year beginning after December 31, 2021, the law will require taxpayers to capitalize and amortize IRC Section 174 research and experimental (Research and Development) expenditures over a five-year period, beginning with the midpoint of the taxable year in which the expenditure is paid or incurred.  

The new provision will impact taxpayers treating Research and Development costs as deductible expenses by no longer enabling them to recover all costs incurred in the year in which they are incurred. Accordingly, taxpayers currently deducting Research and Development costs in the year incurred will be required to file an Application for Change in Method of Accounting (Form 3115) to begin capitalizing and amortizing such costs for tax years beginning after December 31, 2021. 

Additionally, costs for research conducted outside of the U.S. will be amortized over a 15-year period. Further, expenditures for the development of any software will be treated as Research and Development expenditures. For purposes of this rule, software development costs are included in the definition of Research and Development expenditures. This means that many software companies are going to be affected in two major ways – first, that any overseas development will need to be quantified and included and second, that the amount of expenses incurred through overseas development will be amortized over a 15 year period – three times longer than domestic expenses, and reducing the amount of deduction further. 

Decreasing Deductions and Increasing Taxable Income 

These changes will mostly affect taxpayers who claim the Research and Development Credit by decreasing the amount of deductions available via 174, and thereby increasing taxable income – especially for software companies which utilize overseas development activities. In some situations, this increase may be significant, along the lines of a 50% increase, or taking a taxpayer from a net loss to a net profit position. 

Taxpayers need to know that going forward, additional information will need to be gathered that they were priorly not used to gathering for the Research and Development Credit. These data include development costs incurred outside of the United States, and data that can be delineated between design, construction, and testing phases of research. By breaking out expenses in these ways, taxpayers might be able to claim some expenses as qualified research expenses (QRE) – which will then need to be capitalized and amortized – and others as cost of goods sold, to increase deductions. 

Additional items to consider are that qualified expenses are treated differently under section 174 than they are in section 41 – namely, that there are no provisions for “substantially all” when considering wages, and that there is no reduction or “haircut” for contract research expenses. This means that a separate calculation will need to be completed – one that adjusts any wage QRE to specific percentages, and that adds back any reduction in contract research expenses. This separate calculation will provide the taxpayer with the number they need for the capitalization and amortization now required in the new section 174. 

The Bottom Line 

While these changes affect many taxpayers who have come to regard the Research and Development Tax Credit as a dependable component of their financial planning, most taxpayers will feel the biggest differences in the first two years. However, as the years pass on the amortization the deduction amount will eventually level out. – meaning that the value of the deductions and the Research and Development Credit will negate the dips of the early years of the amortization. 

CFO Services Can Help With Your Research Credit & Tax Incentive Needs 

• Through knowledge and perspectives gained working with virtually every industry and type of client (Fortune 500, medium-size and small companies), CFO Services has committed to a strategy of providing a depth of knowledge in a narrow field of focus: business incentives and credits. Overall:  CFO Services provides companies with services to identify and secure federal, state and local incentives across the United States 
• Specialities:

• Federal/State R&D Credits:  Helping clients with the R&D credit calculation, documentation, and exam for creating or improving the product/process. 
• Multi-State Credits & Incentives:  Collaborate with our clients to capture statutory and discretionary state incentives. 
• Technology:  Both areas of service utilize proprietary technology to streamline the capture, compliance, and management of a client’s business incentives.

IRS CircIRS Circular 230 Required Notice‐‐IRS regulations require that we inform you that to the extent this communication contains any statement regarding federal taxes, that statement was not written or intended to be used, and it cannot be used, by any person (i) for the purpose of avoiding federal tax penalties that may be imposed on that person, or (ii) to promote, market or recommend to another party any transaction or matter addressed herein. 

Nebraska Legislative Update………..

The Nebraska’s Unicameral meets every year, and every year we (CFO Services) are involved directly or indirectly, on various legislation that impacts Economic Development.  Our role is technical and narrow, but we have gone ahead and drafted a short summary and provided various links for more detail.  In addition to the typical activities/bills that occur every year, this year’s session was particularly interesting because State Senators were also responsible for allocating over $1B of ARPA funds.

Again, the intent is not to summarize everything that occurred, but to highlight certain areas of interest. If you have any questions, please don’t hesitate to reach out to Chad Denton (@ cdenton@cfoserv.com). 

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Nebraska’s second session of the 107th Legislature adjourned on April 20^th, 2022, which was a 60-day session and resulted in 146 bills passed.  CFO Services, as an Economic Developer/Compliance Partner, views a lot of the session with a more narrow lens, so this correspondence is cursory, and attempts to create awareness of the ARPA activity, in Nebraska, and hone in on specific bills that may impact business incentives. 

Provided below is a link to the Nebraska Unicameral site, as well as two other sites that we identified that provide a broader perspective/summary:

ARPA:

In addition to funding households, small businesses and schools, the American Rescue Plan Act (ARPA) was provided as a relief fund to state and local governments that were negatively impacted by the coronavirus pandemic. In Nebraska, over $1B (Pandemic funding bill approved – Unicameral Update (ne.gov)) in ARPA funds has been allocated to the State of Nebraska and its counties, cities, and local communities. As a result, a significant amount of time, during the 60-day legislative session, was spent sifting through over $4 billion of requests made for ARPA appropriations.  The aforementioned link provides a good summary directly from the State’s Unicameral Update.  High points include:

• Rural and urban workforce housing grants to help attract new talent; and
• Support for community college capital projects, as well as workforce development and dual-credit programs for high school students; and
• Recovery grants in qualified census tracts, primarily targeted to North and South Omaha; and
• Internships, apprenticeships and customized workforce training programs; and
• Expanding childcare capacity; and
• Rural Health Complex to be located at the University of Nebraska at Kearney; and
• Assistance for direct care staff at licensed Medicaid-certified nursing facilities; and
• Support for new, industrial rail park infrastructure; and
• Site and building development support for a North Omaha Industrial Park project; and
• Agricultural Research Service National Center; and
• Assistance to alleviate pandemic-related setbacks for shovel-ready capital projects building arts, culture, humanities and sports amenities across the state; and
• Enhanced outdoor recreation sites across the state; and
• Adjustments to the Nebraska’s Business Innovation Act (to spur additional investment, and assist the H3 career scholarship program

Other Legislation: 

LB873 reduces individual and corporate income tax top rates  over five years to 5.84%, offers income tax credits for property taxes paid to community colleges, boosts total income tax credits available for property taxes paid to local schools to $548 million, and $567 million for 2023, and completely phases out income taxes on social security income.

LB1261 extends the Nebraska Advantage Rural Development Act (NRDA) through 2027 and increases the tax credits available from $1 million to $10 million. The bill also allows a refundable income tax credit equal to ten percent of the investment, not to exceed a credit of $500,000 per application, specific to livestock modernization. A separate technical change also occurred specific to ImagiNE Nebraska, allowing/ensuring that rural and urban manufacturing tiers may include more than one location within their stated project parameters.

LB1150 was passed and includes a combination of other bills/provisions, mostly related to business incentives:

• LB817, an incentive clean-up bill from the Nebraska Department of Revenue, 
• LB502, which provides for the same sales tax treatment for Data Center projects under the Nebraska Advantage Act, as compared to those under ImagiNE Nebraska, 
• LB985 corrects an unintended base-year calculation, under ImagiNE Nebraska, for companies that hired more employees as a result of the COVID-19 pandemic, and 
• LB1094 clarifies the treatment/inclusion of Nebraska resident teleworkers under ImagiNE Nebraska.

NOT PASSED was LB701, which would have extended the Nebraska Job Creation and Mainstreet Job Development Act by 5 years (from 2022 – 2027) and Nebraska Advantage Research and Development Act by 1 year (from 2022 – 2023).