More On The Tips And Overtime Deductions In One Big Beautiful Bill

Forbes

16 hours ago

Earlier this week I noted a subtle difference in the limitations on the tips and overtime deductions included in the Big Beautiful Bill which can create either a marriage penalty or a marriage bonus. I was so taken by the apparent anomaly that I devoted a whole post to it. Now I am getting back to a fuller discussion. When President Trump first came out with "no tax on tips", I studied the proposals that were floating in Congress and had some concerns. Most notable was the harmful effect one of the proposals would have on Earned Income Tax Credit recipients. And then there was all sorts of commentary on how the provision might be gamed. What ultimately emerged addressed many of the issues.
What we have in the final language about tips and overtime illustrates Reilly's Third Law of Tax Planning - "Any clever idea that pops into your head probably has (or will have) a corresponding rule that makes it not work". If you had an idea about how to game the "No tax on tips" of "No tax on overtime", let's see if Congress has already knocked it out even before any regulations have been issued.
Deductions Subject To Limitations And Phase Outs
First of all, the benefits are only about income tax, not Social Security and Medicare as the "no tax" monikers might imply. Further, the final bill puts limits and phaseouts in place. And the benefits are structured as deductions. It you want to know more about what that means, read the next paragraph, but feel free to skip it.
It is worth looking at Form 1040 to understand where the deduction fits in. If you clicked on the link, you will see that your total income is on Line 9. Then on LIne 10, there are adjustments to income. There are a lot of those so they are totaled up on Part II of Schedule 1. Subtracting Line from Line 11 gives you your adjusted gross income (AGI). This is an important number because many thresholds and limitations are keyed to AGI including those of the tips and overtime deductions. Next on line 12 you get either your standard deduction or the total of certain itemized deductions from Schedule A. The tips and overtime will not be among them, so you don't need to be an itemizer. On Line 13 you will see the qualified business income deduction which will be added to the amount on line 12 to arrive at line 14 which is subtracted from AGI to arrive at taxable income. That's where the tips and overtime deductions will go along with the automobile interest deduction included in the bill. I don't know if they will add more lines to the form or give us another schedule. If it is another schedule I hope that they call it Schedule A PLUS.
Do you remember all the talk about a postcard tax return in 2017? Still not happening.
UNITED STATES - NOVEMBER 14: Speaker of the House Paul Ryan, R-Wisc., holds up a postcard tax return ... More form during the press conference following the House Republican Conference meeting in the Capitol on Tuesday, Nov. 14, 2017. Ryan is flanked from left by House Majority Whip Steve Scalise, R-La., House Majority Leader Kevin McCarthy, R-Calif., Republican Conference Chair Cathy McMorris Rodgers, R-Wash., and Rep. Rob Wittman, R-Va. (Photo By Bill Clark/CQ Roll Call)Both the tip deduction and the overtime deduction require that married taxpayers file joint returns to claim the deduction. There are dollar limitations. The limitation is $25,000 for the tip deduction and $12,500 for the overtime deduction on a single return and $25,000 for the overtime deduction on a joint return. The phaseout is the same - $100 for every $1,000 that modified adjusted gross income exceeds $150,000 on a single return or $300,000 on a joint return. The modification to adjusted gross income is an add back of income excluded because it was earned while living abroad or in Puerto Rico on one of the U.S. possessions. I have to wonder if the $150,000 threshold is an echo of the proposal to totally eliminate income taxes on those earning less than $150,000.
Qualified Tips
Unlike earlier proposals, "qualified tips" are not just tips received by employees. The deduction also applies to tips received in the course of a trade or business. The thing that comes to mind there is food delivery people or Uber drivers who are considered independent contractors. I also recall that adult entertainers can be independent contractors. The deduction will be allowed only to the extent that the gross income from the business exceeds the allocable deductions. This could present some planning issue for how capital assets might be written off. The tip deduction will reduce the amount of income counted as qualified business income for that deduction.
What exactly are the "tips" that are the subject of the deduction? First of all, they have to be received by an individual in an occupation which "customarily and regularly received tips on or before December 31, 2024". There is a call for a list to be created. Next the amount involved has to be paid voluntarily, without consequence in the event of nonpayment, not the subject of negotiation and determined by the payor. So that amount that large parties have to pay in a restaurant seems to not qualify. There are excluded fields of business- health, law, accounting, actuarial science, performing arts, consulting, athletics, financial services, brokerage services, or any trade or business where the principal asset of such trade or business is the reputation or skill of 1 or more of its employees. I have to wonder if the "performing arts" exclusion knocks out the adult entertainers. There is some litigation in the sales tax area that might help them.
Overtime
For the definition of "qualified overtime compensation" you really need to look at the bill's language and meditate for a while. Here it is "... the term 'qualified overtime compensation' means overtime compensation paid to an individual required under section 7 of the Fair Labor Standards Act of 1938 that is in excess of the regular rate (as used in such section) at which such individual is employed". That language triggered some back and forth in the twitterverse, about whether they mean the total amount paid for overtime or just the premium.
If you search for what the median hourly wage for Americans is, there are a variety of answers but they seem to be between $20 and $30 per hour, so let's use $25 for illustrative purposes. With that as the base hourly wage you get $1,000 per week for 40 hours, $52,000 per year. At time and half for overtime the $37.50 premium rate would max out the $12,500 limit at 6.5 hours a week. That is how I think of overtime and how I initially read, probably misread, the statute. The consensus seems to be that the deduction is only for the premium. Tom Gorczynski EA pointed out something from the White House website that supports that interpretation. I found that quite persuasive. Kelly Erb also writes that it is just the premium, which seals the deal for me. It still bugs me though.
So if it is just the premium it takes 1,000 hours to max out the benefit if you are single in my example. Call it a 60 hours work week. If you are married and your spouse does not work overtime it would be 2,000 hours. At $50 per hour you will hit the maximum at 500 hours of overtime if you are single or 1,000 hours if you are married with a spouse that does not get overtime. Absent a lot else going on, you won't be having to deal with the phaseout.
I won't comment on the equity or sense behind this particular deduction other than to remark that back when I used to work more than forty hours a week mostly without overtime pay, I found it a lot harder when I was doing that by working two jobs rather than longish hours on one job. So I am puzzled as to what makes an overtime premium worthy of special tax treatment.
Gaming The Overtime Deduction
I don't know much about the Fair Labor Standards Act, which is the key to the deduction. It is clear however that whether people are exempt employees not subject to the overtime premium requirement can be debatable. Employers will generally prefer to not have that requirement. I don't think this deduction will change that, but I can't resist coming up with a way to game it. Here is the idea. I have a bunch of salaried employees and I want to help them out. So what I do is cut everybody's pay to below $684 per week so that I have to pay them time and a half over forty hours. Then I guarantee them overtime hours which will include overtime hours when they are "on-call". That will bring them up to whatever their previous salary was. And a third of that amount will be deductible. This is actually a terrible idea when it comes to actually executing it, but I felt I had to come up with something if I could.
I haven't thought of a way to game the tips deduction, but I am sure they will be coming.