“Tax Proposal Comparison September 2020” - Michael Shaff, Chair, Tax Practice

With the election approaching, it may be of interest to compare the tax proposals of President Trump and former Vice President Biden.  At this time, neither candidate has tax proposals on his website.  It is also important to note that the proposals will be subject to change once in the hands of Congress and will only resemble the President’s or former Vice President’s proposal if the newly elected President’s party, whichever one it is, controls both houses of Congress.  The proposals, if and when enacted, may take effect prospectively or retroactive to January 1, 2021. 

Discussing tax planning strategies may be prudent at this time, as there will only be a short window between elections and the start of the 2021 tax year 

TRUMP Proposals.  The Administration’s tax proposals were obtained from the Tax Foundation website, https://taxfoundation.org/president-trump-tax-plan-2020/.   A number of the President’s tax policy changes were enacted in 2017. 

1. Payroll tax cut.  The President has authorized an optional plan to defer the 6.2% employee’s portion of the payroll tax until next year.  The plan is basically a loan and will have to be paid by the employee in the form of higher withholding later.  The President has stated that he would want to have the loans forgiven if he is reelected. 
2. Opportunity Zones.  At present the Tax Cut and Job Act enacted in 2017 provides for opportunity zones, investment in which can result in the deferral and ultimately no taxation on gains reinvested in an opportunity zone.  Each state can designate economically impacted areas for Treasury to recognize as opportunity zones.  The proposal is to expand the opportunity zone program. 
3. 100% expensing of capital expenditures.  Instead of capitalizing and depreciating the cost of capital assets, US based pharmaceutical and robotics manufacturers would be able to deduct instead of capitalize capital expenditures.  The proposal reflects the desire to domesticate key industries from abroad. 
4. 15% capital gains tax rate.  The maximum tax rate on net long term capital gains is now 20% (exclusive of the 3.8% Obamacare tax on net investment income that may apply).  The proposal is to drop the maximum rate to 15%. 
5. Tariffs.  The Tax Foundation anticipates the continued use of tariffs to foster key US industries. 

BIDEN Proposals.  Former Vice President Joe Biden’s tax proposals are also derived from the Tax Foundation website https://taxfoundation.org/reviewing-joe-bidens-tax-vision/ .   

1. Capital Gains.  The preferential tax rate for net long term capital gains would go to 39.6% for taxpayers with incomes over $1,000,000. 
2. Top tax bracket.  The top tax bracket would increase from 37% to 39.6% for incomes over $400,000. 
3. Estate tax.  The value of assets in an estate would be recognized as if all the assets were sold at death.  While the proposal is not specific, it seems reasonable to infer that the rate for the death tax would be up to 39.6%.  The automatic tax free step up in basis to the date of death value would not apply.  Inherited basis would be a function of the gain recognized on death.  It is unclear how the marital deduction would work if it were preserved. 
4. Section 199A.  The qualified business income deduction designed to narrow the gap between the corporate tax and the individual tax rate would be repealed for those with incomes over $400,000. 
5. Corporate tax rate.  The corporate tax rate would go from 21% to 28%. 
6. Itemized deductions.  Individuals with income over $400,000 would lose the benefit of some of their itemized deductions.  The Pease Amendment that was in effect until 2018 limited the deductibility of mortgage interest, state and local taxes and charitable deductions. The former two deductions are already severely limited by the changes enacted in 2017.   
7. Minimum corporate tax.  15% minimum book income tax for corporations with income over $100,000,000. 
8. GILTI.  The tax rate on global intangible low taxed income (basically most income that a corporation earns from foreign sources) would double from 10.5% to 21%. 
9. Social Security Payroll Tax.  At present the social security payroll tax of 12.4% (6.2% on the employer, 6.2% on the employee) phases out on income over $137,700.  The phase out would be eliminated. 
10. Childcare Tax Credit.  Up to $8,000 tax credit for qualifying child care.

There was no mention of restoring the state and local tax deduction.  In fact, the value of itemized deductions for those with income over $400,000 would be greatly limited.

Californians in the top federal and state brackets could be paying a combined 56.4% income tax rate if the pending proposal to raise the top tax rates by 3.5%, to a top rate of 16.8%, is enacted retroactive to January 1, 2020 as proposed.

About Michael Shaff

Michael Shaff joined the firm in 2011 as Of Counsel. He is the Chair of the Tax Practice group.

Michael specializes in all aspects of federal income taxation. Mr. Shaff has served as a trial attorney with the Office of the Chief Counsel of the Internal Revenue Service for three years. Mr. Shaff is certified by the Board of Legal Specialization of the State Bar of California as a specialist in tax law. Mr. Shaff is a past Chair of the Tax Section of the Orange County Bar Association. He is co-author of the “Real Estate Investment Trusts Handbook” published annually by West Group.

Michael received his A.B. at Columbia college in 1976, his J.D. from New York University School of Law in 1979 and his LL.M. in taxation from New York University School of Law in 1986. He is admitted to practice law in the states of California, New York and Massachusetts and is a member of the Orange County Bar Association.

For more information about our Tax Practice, contact Michael Shaff at .

Stubbs Alderton & Markiles’ attorney Michael Shaff was published in the Daily Journal for his MCLE article entitled “Who Wants (Tax-Free) $10 Million?" Michael discusses special federal income tax rules allowing individuals to exclude the monetary gain on the sale of qualified small business stock.

To find how to get tax-free $10 million and see the full article in the Daily Journal visit here.

Michael Shaff joined the firm in 2011 as Of Counsel. He is the Chair of the Tax Practice group.

Michael specializes in all aspects of federal income taxation. Mr. Shaff has served as a trial attorney with the office of the chief counsel of the internal revenue service for three years. Mr. Shaff is certified by the board of legal specialization of the state bar of California as a specialist in tax law. Mr. Shaff is a past chair of the tax section of the orange county bar association. He is co-author of the “Real Estate Investment Trusts Handbook” published annually by West Group.

Michael received his A.B. at Columbia college in 1976, his J.D. from New York University School of Law in 1979 and his LL.M. in taxation from New York University School of Law in 1986. He is admitted to practice law in the states of California, New York and Massachusetts and is a member of the Orange County Bar Association.

For more information about our Tax & Estate Practice contact Michael Shaff at

For more articles written by Michael Shaff, visit his bio page for insights and features.

Stubbs Alderton & Markiles’ attorney Michael Shaff was published in the Daily Journal for his MCLE article entitled “Questions about Tax Rules for Pricing Options.” Michael discusses special tax rules on the exercise price of options issued to employees and consultants, stock based equity incentives, and "stock rights" issued to employees.

To view a digital copy of the article published in the Daily Journal visit here: Questions about Tax Rules for Pricing Options - Michael Shaff

Michael Shaff joined the firm in 2011 as Of Counsel. He is the Chair of the Tax Practice group.

Michael specializes in all aspects of federal income taxation. Mr. Shaff has served as a trial attorney with the office of the chief counsel of the internal revenue service for three years. Mr. Shaff is certified by the board of legal specialization of the state bar of California as a specialist in tax law. Mr. Shaff is a past chair of the tax section of the orange county bar association. He is co-author of the “Real Estate Investment Trusts Handbook” published annually by West Group.

Michael received his A.B. at Columbia college in 1976, his J.D. from New York University School of Law in 1979 and his LL.M. in taxation from New York University School of Law in 1986. He is admitted to practice law in the states of California, New York and Massachusetts and is a member of the Orange County Bar Association.

For more information about our Tax & Estate Practice contact Michael Shaff at

Michael Shaff joined the firm in 2011 as Of Counsel. He is the chairperson of the Tax Practice Group.  Michael specializes in all aspects of federal income taxation. He has served as a trial attorney with the office of the Chief Counsel of the Internal Revenue Service for three years. Mr. Shaff is certified by the Board of Legal Specialization of the State Bar of California as a specialist in tax law. Mr. Shaff is a past chairof the Tax Section of the Orange County Bar Association. He is co-author of the “Real Estate Investment Trusts Handbook” published annually by West Group.

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Exit strategy, the plan for monetizing or disposing of a business, may seem remote and speculative when organizing a new business.  But it is important to know what exit strategies are available and how those strategies are likely to be taxed depending on the form of entity through which the start up does business.

1. Sole Proprietorship. If a single entrepreneur does nothing more, he will be doing business as a sole proprietorship.  This is true even when the entrepreneur has adopted a trade name through which he does business, often referred to as a “D/B/A”.   The advantages for doing business as a sole proprietorship include not having to pay taxes and file tax returns for a separate entity and being able to include the results of the sole proprietorship on the entrepreneur’s own tax return.  The only exit strategy, if nothing more is done to transfer the entrepreneur’s business to an entity, would be the sale of the business’s assets.  If the business has inventory and accounts receivable the amount of the purchase price allocated to the inventory and receivables would be ordinary income for the selling entrepreneur.  The purchase price allocated to the intellectual property, going concern value and goodwill would be taxed as long term capital gain for the selling entrepreneur—provided the entrepreneur has conducted the business being sold for at least a year.  The obvious down side to operating as a sole proprietorship is the principal’s personal liability for all of the debts and liabilities of the business.

2. General Partnership. If two or more participants conduct a business together and they do not form an entity, the result is generally going to be a general partnership.  For example, Charlie agrees to back Delta’s start up business.  Delta does most of the work and agrees that when the business starts to make money, it will repay Charlie’s investment then split the business’s profits on an agreed percentage.  Charlie and Delta may not even realize it, but they have formed a general partnership.  Each partner is responsible personally for the debts and obligations of the general partnership[1].  While it is at least theoretically possible that a buyer would purchase Charlie and Delta’s general partnership interests, the realistic exit strategy, without their doing more, is the sale of the assets of the business.  As in the sole proprietorship, the purchase price of a business sold must be allocated among the business’s various assets.  Both buyer and the sellers are expected to agree on the allocation of the purchase price among those assets[2].

3. Limited Partnership. A limited partnership is an entity that the participants must affirmatively elect to adopt[3].   Like a sole proprietorship and a general partnership, a limited partnership is a pass-through entity—it does not pay income tax but instead passes its income or losses through to its partners in accordance with the terms of its limited partnership agreement and the terms of federal income tax law.  The general partners of a limited partnership are subject to personal liability for the debts of the limited partnership as would the partners of a general partnership[4].  The limited partners are afforded limited liability.  Like the sole proprietorship and the general partnership, the likely exit strategy is the sale of the business’s assets.  Also, like the sole proprietorship and the general partnership, a limited partnership (or a limited liability company) may contribute its assets or its partners may contribute their limited partnership interests to a corporation generally on a tax-free basis. ^[5]

4. Limited Liability Company. A limited liability company (LLC) also is taxed as a partnership, meaning that the deductions from starting up and operating the business may be passed through to the investors who funded them.  A limited liability company affords limited liability to all of its members (except for those who signed personal guaranties of loans, leases or other obligations of the limited liability company).  LLCs and limited partnerships have the flexibility to issue a variety of classes of equity, including series of preferred having convertibility features, put rights in sum, having as wide a variety of terms as an investor and the principals of the business may negotiate.  LLCs and limited partnerships also have the ability to issue profits interests.  Profits interests are a way to give service providers (both employees and consultants) a stake in the appreciation of the company with no tax due on grant, no exercise price and capital gains to the extent realized on exit.  A profits interest is defined as a partnership interest that would yield no distribution if the partnership’s assets were sold at their fair market value immediately after the grant of the partnership interest[6].  Any type of investor may invest in an LLC without adversely affecting the LLC’s status[7]  If a potential buyer of the business buys some or all of the LLC interests, the sellers at least in part must allocate a portion of the sales price to inventory and unrealized receivables taxable as ordinary income. As previously noted, an LLC may convert to a corporation on a tax-free basis (in most cases) if possible buyers would be likely to prefer to use stock as the acquisition consideration. ^[8]

5. Summary of Partnership Entities. The general partnership, limited partnership and limited liability company are generally treated as partnerships for tax purposes, meaning that they pass through the taxable income or loss to their equity owners.  The tax benefits of net losses passed through to the partners are subject to (a) the partner having sufficient basis in the partner’s  interest in the partnership (or LLC), (b) the partner being “at risk” for his or her share of the entity’s liabilities and (c) the partner being actively involved in the partnership’s business in order to claim net deductions[9].  In many cases, conducting the business through an LLC is sufficient—it provides (i) a single level of tax, (ii) limited liability and (iii) the ability to grant key employees and consultants incentive compensation without incurring tax for the recipient or the partnership.

6. Corporations. Corporations are taxed under a completely different set of rules from those affecting partnerships.  Corporations are eligible for tax-free acquisitions when properly structured as (a) a statutory merger, (b) an exchange of stock of the target corporation for voting stock of the acquiring corporation or (c) the acquisition of substantially all of the assets of the target corporation for voting stock of the acquiring corporation[10]  Being able to receive the acquiring corporation’s stock tax-free in an acquisition if the acquiring corporation’s payment in its own stock were taxable, is a very helpful feature, especially when a lockup agreement is in place or the acquiring corporation itself is not publicly traded or is thinly traded—if the acquiring corporation’s payment in its own stock were taxable, the target corporation’s shareholders would be taxed on the value of the acquiring corporation’s stock but would have no way to raise the funds to pay the tax.  When sold, corporate stock yields capital gain or loss unless the seller is a securities dealer[11]  Conversion of a partnership or LLC to a corporation is easy and generally can be accomplished tax free[12].  There are two relevant types of corporations from a tax standpoint, C corporations and S corporations.

7. C Corporations. C corporations are separate legal and tax entities from their shareholders.  C corporations pay tax at the corporate level and do not pass through any taxable income or loss.  Shareholders are only taxed to the extent that the C corporation pays a dividend distributions out of current or accumulated net earnings.  With certain exceptions[13], the dividends of a C corporation are not taxable when received by a tax-exempt entity and are subject to reduced US income tax withholding when paid to a foreign investor from a country with an income tax treaty with the US[14].  The insulation of shareholders, especially foreign investors and retirement plans, from the tax liability of the C corporation and the C corporation’s ease in being able to issue various classes of preferred stock make C corporations most attractive for important types of investors.  As previously discussed, sales of corporate shares almost always give rise to capital gain or loss and the selling shareholder does not have to allocate the sales price between an ordinary and capital portion.   Corporations are eligible for the tax-free reorganizations described generally in paragraph 6 above.  However, if a C corporation sells its assets to the acquiring corporation, the tax cost can be quite high:  35% federal corporate income tax and 9.84% California state corporate income tax with the net amount subject to tax when distributed to individual shareholders at up to 23.8% at the federal level and up to 13.3% in California.  A shareholder in a C corporation that sells its assets may only net about 40% of the total sales proceeds.

8. S Corporations. S corporations are in many ways a hybrid cross of C corporations and LLCs.  Net income and net loss of an S corporation is passed through to the shareholders, so in that sense S corporations resemble LLCs as pass-through entities.  S corporations, like any other corporation, offer limited liability for all shareholders.  But S corporations may have only one class of stock[15]   The inability to issue preferred stock or convertible debt is a significant disincentive on the use of an S corporation—the issuance of such a class of securities would result in the automatic conversion of the S corporation to a C corporation.  The hardest restriction on the use of an S corporation is the exclusion of all non-US individuals as eligible shareholders[16] and the limitation of no more than 100 US resident individual shareholders.   As a corporation, an S corporation is eligible for use of the corporate reorganization rules.  Like C corporation stock, the stock of an S corporation generates capital gain or loss when sold.

For more information about Tax & Estate Planning Practice, please contact Michael Shaff at (818) 444-4522 or .

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[1]   Cal. Corp. Code §16306(a).

[2]   Internal Revenue Code (“IRC”) §1060(b).

[3]   Cal. Corp. Code §15902.01(a).

[4]   Cal. Corp. Code §15904.04(a).

[5]   IRC §351.

[6]    Rev. Proc. 93-27, 1993-2 C.B. 343.

[7]   Some entities like pension plans and IRAs may have to pay tax on the net income allocated to them from an LLC or other partnership that is engaged in an active business.  (IRC §512.)  LLCs and other partnership entities present similar issues for foreign investors.

[8]   IRC §751(a).

[9]   Generally, suspended losses may be claimed as the partnership generates net income or when it is ultimately disposed of.

[10]   IRC §368(a)(1).

[11]   E.g., Biefeldt v. Commissioner (7^th Cir. 1998) 231 F.3d 1035.

[12]   IRC §351. Care must be taken to convert to corporate form before undertaking acquisition negotiations.

[13]   Voluntary employee benefit associations, supplemental unemployment compensations plans, social clubs and other exempt organizations that have borrowed to purchase the shares.  (IRC §512(a)(3).)

[14]   See, e.g., United States—Peoples Republic of China Income Tax Treaty (1984), Article 9, Section 2, reducing the withholding on dividends paid by a corporation from one country to a resident of the other from the general 30% withholding rate to 10%.

[15]   Differences in, or even a complete absence of, voting rights are permitted.  (IRC §§1361(b)(1)(D) and (c)(4).)

[16]   IRC §1361(a).

This summary can only hit some of the more prominent aspects of the taxation of the development, purchase and sale of intellectual property.

 1.          What is intellectual property for purposes of this analysis?

            a.     Copyrights, literary, musical or artistic compositions or similar property are expressly identified under the Internal Revenue Code for special “non-favorable” treatment on sale by the creator.[1]   Video games, books, movies, television shows all fall into this category of asset in the hands of the developer.[2]

            b.    Another class of intellectual property, including trade secrets, formulas, know how and other methods, techniques or processes that are the subject of reasonable efforts to maintain secrecy fall within the general class of intangible assets that may be treated as a capital asset on sale but are subject to special rules on the useful life over which to amortize the cost of the intangible asset, as discussed below.[3]

 2.        How is the developer or owner of intellectual property treated?

         a.        In general, self-created copyrights, literary, musical or artistic compositions are not eligible for capital gain treatment on sale.[4]  As an example, the Tax Court has held that the concept for a television show was not eligible for capital gain treatment.[5]

              b.       Purchased intellectual property is generally eligible to be treated as a capital asset on sale unless the owner holds the intellectual primarily for sale to customers in the ordinary course of business, as in the case of a software or game developer selling individual, non-custom programs.  The sale of the copyright and the code to the program would not be treated as capital gain in the hands of the developer but could yield capital gain if the copyright and the software had been purchased.

             c.     The exclusion from capital asset treatment does not necessarily apply to a self-created invention that can be patented[6].  The treatment on disposition of such assets may depend on whether the cost of development was capitalized and amortized or whether the development costs were expensed and deducted in the course of development as well as whether the asset is held for sale to customers (not a capital asset) or is used in the taxpayer’s business (in which case it may be eligible for capital gain/ordinary loss treatment).

           d.     A transaction in which the developer is compensated has to be analyzed to distinguish a license arrangement from a sale.[7]  An agreement cast in the form of an exclusive license may be treated as a sale for tax purposes even if title remains with the grantor.  The key question is whether the transferor retained any rights which, in the aggregate, have substantial value.[8]

 3.      How is the purchaser of intellectual property treated?

             a.     The purchaser of the intellectual property may capitalize and amortize the cost of developing the intellectual property if the intellectual property is to be used in the creator’s business.[9]  Computer software is automatically accorded three year straight line amortization if the developer or purchaser opts to amortize the cost of the software.[10]  If the development of the software qualifies as research and development in the laboratory or experimental sense, the costs are deductible currently.[11]

           b.     The purchaser of the intangible assets used in the purchaser’s trade or business (other than computer software as provided above) is permitted to amortize the cost of purchase allocated to most forms of intellectual property over 15 years on a straight line basis.[12]   Section 197 assets include goodwill, going concern value, workforce in place, operating systems, information bases, customer based intangibles, vendor based intangibles, licenses, trade marks, trade names, and franchises.[13]

          c.     The purchaser of the stock of a company that owns intellectual property is subject to the treatment to which the company is already subject unless the purchaser and seller of the stock elect to treat the stock sale as an asset sale[14].

 4.     Sales and Use Tax.  Of the states that impose sales and use tax, most impose the tax on the sale of tangible personal property.  In California, the sale of a custom written computer program is not subject to sales tax.[15]  In the case of the sale of a prewritten program to customers, the sales tax is imposed if the software is sold on compact discs or on other media stored in tangible form.[16]  Software that the buyer downloads from a website and that is not otherwise delivered on tangible media is not a sale of tangible personal property subject to the California sales tax.[17]

 5.     Conclusion.  The tax treatment of intellectual property is determined by the nature of the intellectual property and how the taxpayer obtained the intellectual property.  The cost of developing self-created intellectual property may be eligible for immediate expensing or may have to be capitalized and carried on the taxpayer’s books, not eligible for either deduction or amortization depending on its purpose, the nature of the assets’ development and the assets’ useful life.  The cost of purchasing intangible assets used in a business is amortized on a straight line over 15 years except for acquired computer software, which is written off over three years.  The cost of other purchased intangible assets may be eligible for amortization using the income forecast method.  The sale of intellectual property generally results in capital gain or loss unless the property is a self-created copyright or an asset held primarily for sale in the taxpayer’s business.

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Michael Shaff joined Stubbs Alderton & Markiles, LLP in 2011 as Of Counsel. He is chair person of the Tax Practice Group.  Michael specializes in all aspects of federal income taxation. Mr. Shaff has served as a trial attorney with the office of the Chief Counsel of the Internal Revenue Service for three years. Mr. Shaff is certified by the Board of Legal Specialization of the State Bar of California as a specialist in tax law. Mr. Shaff is the past chair of the Tax Section of the Orange County Bar Association.  He is co-author of the “Real Estate Investment Trusts Handbook” published by West Group. Michael’s practice includes all aspects of federal and state taxation, including mergers and acquisitions, executive compensation, corporate, limited liability company and partnership taxation, tax controversies and real estate investment trusts.

For more information regarding Intellectual Property Taxation, please contact Michael Shaff at or (818)444-4522.