Recently enacted New York State budget law, and some of its federal income tax consequences

New York State has enacted a new budget law, Senate Bill S7509C, that is available online here.

Of particular interest to many of us may be (1) Part LL, starting at page 47, establishing a Charitable Gifts Trust Fund, and (2) Part MM, starting at page 56, which establishes an Employer Compensation Expense Program.

The Charitable Gifts Trust Fund creates two distinct accounts, one called the “health charitable account” and the other called the “elementary and secondary education charitable account.” The moneys contributed to each (or otherwise accruing to it) are held separately from each other and everything else under the state’s purview, under the joint custody¬† of the state comptroller and the commissioner of taxation and finance. These moneys generally are required to be expended only for specified services that relate to the purposes indicated by the accounts’ names.

Starting in 2019, by making a timely contribution to one of these accounts, one can qualify to receive an 85 percent tax credit against New York State income tax liability with respect to the amount contributed.

I haven’t yet had a chance to do any serious analysis of this provision – pertaining either to how it works, or to its effects on federal income tax liability. But suppose one makes a $100 contribution to one of the funds, thereby reducing one’s New York State income tax liability by $85. Assuming a favorable federal income tax analysis, this yields the contributor a federal charitable deduction in the amount of $100. Depending on the relevant marginal rate, this could potentially reduce one’s federal income tax liability by more than the $15 difference between $100 and $115.

For this result to follow, the federal income tax measure of the charitable contribution would have to be $100, not $15. But there are both administrative and case law precedents in support of this result. (And note that, when a charitable contribution is deductible under New York State law, one generally does not have to reduce the federal value of the contribution by the state tax saving.) The use of the funds would also need to have economic substance, compared to simply paying state income taxes. But if you read the new law carefully, you will see the aspects of such substance that a contribution to either of the funds has – in particular, given the degree of pre-commitment of the funds. Indeed the NY State legislature might receive useful information from contributions to the two programs regarding donors’ substantive policy preferences.

Under Part MM, the Employer Compensation Expense Program, employers that are required to withhold income taxes from their employees’ wages can elect to pay a special payroll tax that equals a specified percentage of the payroll amounts paid to covered employees. The percentage is 1.5% in 2019, 3% in 2021, and 5% starting in 2021. Covered employees get state tax credits for their shares of the special payroll tax thus paid by the employer.

With the caution that my understanding of the provision remains very preliminary, the effect may be as follows. Suppose that I am a covered employee of an electing employer that is taxed at the 21 percent federal corporate rate, and that in 2019 the employer paid me $1,000 of wages, on which it paid a $15 special payroll tax. My New York State income tax liability declines by $15.

Deducting the $15 payroll tax as a business expense would reduce the employer’s federal income tax liability by $3.15 (at the 21% rate). Meanwhile, my reduced state income tax liability has no adverse federal income tax consequences for me, assuming that the transaction is respected for federal income tax purposes, if the extra $15 would havbe been nondeductible anyway. Also, the employer’s current year tax flows would not be adversely affected by keeping current on the new payroll tax, insofar as it comparably reduced state income tax withholding on its employees’ behalf, to reflect the expected reduction in their ultimate state income tax liabilities.

Let’s assume that the federal income tax results here are indeed as stated. Why would the employer make the election, given that it’s still worse-off after tax under the stated facts? The main point here is that, as a general matter, employees may be willing to accept less pretax compensation when they are paid in a more tax-favorable, rather than a less tax-favorable manner. For example, suppose that my employer offered me a choice between (a) a higher salary but no employer-provided health insurance, and (b) a lower salary but with federally excludable health insurance benefits. It would be unsurprising if I agreed to (b) in lieu of (a), in part or even wholly by reason of the federal income tax savings. This is par for the course.

More broadly, it’s long-accepted Tax Planning 101 that parties engaged in arm’s length transactions with each other will often have the flexibility to determine which of them will bear particular tax consequences, either favorable or unfavorable. Thus, in my Tax I class, I have long emphasized what I call “collective tax minimization” – the fact that, so long as the transaction parties can duly adjust multiple transaction terms, they may mutually benefit from their structuring their agreements in such a way as to keep their collective tax liability as low as possible.

Thus, consider employee stock options. As a practical matter, they often can be structured to be either (1) currently deductible by the employer and includable by the employee, or (2) currently neither deductible nor includable.¬† (To simplify, let’s ignore here questions of future deductibility and includability, and of the possible effect on future employee capital gains realizations.) All else equal, (1) is better for the employer, and (2) is better for the employee. But if they can adjust the gross (i.e., pretax) value of the option grant to reflect whether they are choosing (1) or (2), then their interests may align.

For example, suppose that the employer faces the corporate rate of 21%, while the employee faces the top individual rate of 37%. Then option (2) is collectively better for the two parties combined than option (1). But, for each $100 of stock options granted, (2) is $21 worse than (1) for the employer (all else equal), albeit $37 better for the employee.

Not to worry, however – both are better off under (2) than they would have been under (1) so long as the option grant is between $21 and $37 smaller (per $100 of options that would otherwise have been granted) under (2) than it would have been had they chosen (1).

Obviously further legal analysis is required before one can definitively set forth the federal income tax consequences of employers’ electing to participate in the Employer Compensation Expense Program. And participation in the Program may not be the easiest thing in the world to establish and explain adequately to employees. But this provision, like that pertaining to the Charitable Gifts Trust Fund, has the potential to mitigate the adverse consequences to New York State residents of the 2017 tax act’s largely repealing state and local income tax deductions. And it does so within the 2017 act’s deliberate contours, which were based on the view that employer business expenses, like individuals’ charitable contributions, should generally be treated more favorably than individuals’ payments of state income tax liability. So both provisions can reasonably be viewed as wholly consistent with the intent behind the 2017 tax act.