The California Governor signed Assembly Bill 150 on July 16, 2021. The AB150 budget trailer bill creates an elective pass-through entity tax, revises and expands the small business hiring credit (also known as the Main Street Small Business Tax Credit), creates a homeless hiring tax credit, extends the taxable years for which the credits for rehabilitating certified historic structures and for donating fresh fruit or vegetables to a food bank may be claimed, and increases the amount of California Competes Tax Credits that may be allocated during fiscal year 2021-22.
California joins several other states, such as New York and New Jersey, that have created a PTE tax, providing individual pass-through entity owners a workaround of the federal $10,000 limit on state and local taxes deductions.
Elective Pass-Through Entity Tax
The PTE tax is effective for electing qualifying entities for tax years beginning on or after January 1, 2021, through December 31, 2025. Qualifying entities are partnerships or S corporations with owners that are exclusively corporations, individuals, fiduciaries, estates, and trusts. AB150 allows a qualified entity doing business in California and that is required to file an S corporation return, a limited liability company return, or a partnership return to elect annually to pay an elective tax according to or measured by its qualified net income, computed at the rate of 9.3% for the taxable year for which the election is made. The “qualified net income” of a qualified entity means the sum of the pro rata share or distributive share of income subject to tax under the personal income tax law for the taxable year of each qualified taxpayer. “Qualified entity” means an entity that meets both of the following requirements for the taxable year: (1) the entity is taxed as a partnership or an S corporation; and (2) the entity’s partners, shareholders or members in that taxable year are exclusively corporations or taxpayers, as defined in Cal. Rev. & Tax. Cd. § 17004 , excluding partnerships, i.e., individuals, fiduciaries, estates, or trusts, but a quailed entity does not include a publicly traded partnership or an entity that is permitted or required to be in a combined reporting group.
The PTE tax requires an annual election on an original, timely filed return, which is irrevocable for that year and is binding on all owners of the PTE. Partnership or S corporations eligible to be considered as an electing qualifying entity should consider whether making the election and paying the elective tax on or before the original due date of these 2021 tax returns would help maximize the qualified taxpayer’s federal deduction for state and local taxes. Consider whether highly compensated California employees may benefit by restructuring their wages as pass-through entity income and electing California PTE tax.
Main Street Small Business Tax Credit
AB150 expands and revises the Main Street Small Business Tax Credit, which is a credit against California’s personal and corporate income taxes (for taxable years beginning in 2020) or sales and use taxes (for reporting periods commencing on January 1, 2021, and until April 30, 2026, as specified) for qualified small business employers (employers that, as of December 31, 2019, employed 100 or fewer employees and experienced a 50% decrease in gross receipts as compared to a base period) that received a tentative credit reservation from the California Department of Tax and Fee Administration (CDTFA), which could allocate, on a first-come, first-served basis, up to cumulatively $100 million in credits but not more than $100,000 to any qualified small business employer. A150 authorizes a credit against the personal and corporate income taxes for each taxable year beginning on or after January 1, 2021, and before January 1, 2022, to a qualified small business employer (a taxpayer that as of December 31, 2020, employed a total of 500 or fewer qualified employees and has a decrease of 20% or more in gross receipts as compared to a base period) that receives a tentative credit reservation, in an amount equal to $1,000 for each net increase in qualified employees, not to exceed $150,000 for any qualified small business employer.
Homeless Hiring Credit
A150 allows a credit under the personal income and corporation tax laws for each taxable year beginning on or after January 1, 2022, and before January 1, 2027, to a qualified taxpayer that employs an eligible individual during the taxable year, in an amount between $2,500 and $10,000 per eligible individual, not to exceed $30,000 per taxpayer per taxable year, depending on the amount of hours worked by the eligible individual, and subject to specified conditions and limitations. A “qualified taxpayer” is an eligible employer that pays California wages subject to withholding under the unemployment insurance code to an eligible individual; an “eligible employer” is a taxpayer that pays wages subject to withholding under the unemployment insurance code, pays at least 120% of the minimum wage, and provides to the FTB, upon request, a copy of the certification for each eligible individual for each taxable year the credit is claimed for that eligible individual; and an “eligible individual” is a person who: (1) is homeless on the date of hire or anytime during the 180-day period before the date of hire, or someone who is receiving supportive services from a homeless services provider; and (2) has been issued a certification that has not expired. The total aggregate amount of the credit that may be allocated by credit reservations per calendar year to all qualified taxpayers is limited to $30 million. A continuum of care, as defined, or a community-based service provider that is connected to a specified local information system, is required to issue certifications to eligible individuals and eligible employers, so that they may be eligible for the credit.
Credit for Rehabilitating Historic Structures
A150 extends by one year the taxable years for which the credit under the personal income and corporation tax laws for rehabilitating certified historic structures may be claimed (from taxable years ending before January 1, 2026, to taxable years ending before January 1, 2027).
New Donated Fresh Fruits or Vegetable Credit
A150 extends by five years the taxable years for which the credit under the personal income and corporation tax laws for donating fresh fruits and vegetables to a food bank may be claimed (from taxable years ending before January 1, 2022, to taxable years ending before January 1, 2027).