What You Need to Know About the Mississippi Pass-Through-Entity Election

In order to work around the Federal $10,000 state and local tax (SALT) deduction limitation imposed by the Tax Cuts and Jobs Act of 2017 for individual income tax returns, many states have implemented a “pass-through entity tax” (“PTET”) wherein taxes related to the pass-through entity (i.e., partnership, LLC, or S-corporation) are assessed at the entity level rather than the pass-through owner’s level. The tax expense is fully deductible by the pass-through entity (“PTE”) and then passed through to its owners, allowing them to receive a deduction that they otherwise would not due to the $10,000 limitation or because they use the standard deduction instead of claiming itemized deductions such as taxes, mortgage interest, and charitable contributions.

Mississippi’s Pass-Through Entity Election

From here, the PTET details may differ from state to state. In Mississippi’s case, one would then get a credit for the PTE taxes paid equal to their share of the taxes paid. The Mississippi (MS) PTE election is made by filing Form 84-381. Greater than 50% of voting owners must consent for the entity to make the election, which would apply to all owners, and cannot be made on an individual-by-individual basis. The election is applicable every year unless it is revoked. An election to revoke is also made by filing Form 84-381. The election is due by the due date of the return for the tax year to which the election applies, or by the date such return is filed, whichever is latest.

Legislation Woes

House Bill 1691 of the 2022 Legislative Session was signed into law on April 14, 2022. However, the legislation left many compliance issues unclear. Issues such as voting clarifications and interactions with other pass-through income tax credits, such as the Ad Valorem Tax Credit and the Children’s Promise Credits, were corrected in the legislature’s 2023 Legislative Session with House Bill 1668, which was signed into law on March 27, 2023. Arguably the most notable correction was for the unused PTET credit to be carried over or refunded; otherwise, the unused credit would have been permanently lost.

Other Issues

The timing of the deduction for tax purposes has been a topic of discussion. IRS Notice 20-75 indicates that the deduction should be allowed in the year in which the payment is made. Others have reasoned that accrued tax may be deductible under IRC Section 164, assuming the conditions of an incurred liability are met. If an election is not made by December 31, 2022, the liability may not be considered “fixed” and thus not deductible in 2022. Timing of the election, the tax payments, and the deduction should be evaluated carefully.

The deduction timing is just one of many issues not clearly addressed in IRS Notice 2020-75. Comment letters were written on October 26, 2021, and March 6, 2023, by Ms. Jan Lewis, Chair of the AICPA Tax Executive Committee (and MSCPA member), to the IRS regarding these issues and the AICPA’s recommendations. As this notice served as the IRS’s initial guidance on the emerging issue of PTETs, additional IRS guidance is expected that hopefully addresses issues noted by the AICPA and others.

Tax Planning Considerations

Lack of clarity in legislation and guidance at the Federal and state levels presents tax planning challenges. It is difficult to plan when the law is unclear, yet practitioners and taxpayers are in Tax Season 2023 needing to address the 2022 tax year.

Whether or not an entity should make the PTE election is an important consideration for tax compliance and tax planning. For high-income individuals or those claiming the standard deduction, pass-through owners will be able to deduct a larger portion of their income taxes paid against Federal income. However, this benefit may not outweigh other benefits for low- to middle-income individuals. If one’s primary source of MS income is from the pass-through entity, other losses, exemptions, or other itemized deductions would offset said income at the individual level. The MS PTET provides for no such offsets.

The decision to make the MS PTET election should be relatively straightforward when all owners are Mississippi residents. However, further considerations should be given when the entity has out-of-state owners, as the owner’s state of residence may or may not offer a credit for pass-through entity taxes paid.

Further, 2022 tax planning may not have considered the MS PTET. Suppose an entity decides to make the election for 2022. In that case, the pass-through owner may find themselves with large overpayments if they had adjusted withholdings or remitted estimated tax payments. The overpayment should be refunded upon filing the 2022 individual income tax return. Conversely, the entity may be subject to underpayment interest and penalties if the election is made for 2022 but estimated tax payments were not made. Practitioners are hoping MDOR will issue transition relief.

Tax planning around a PTET election may be short-lived as the current SALT limitation is set to expire after December 31, 2025. However, legislation could be extended or made permanent. Practitioners and taxpayers will have to follow developments to the SALT deduction and may find themselves in another tax quandary come 2025, waiting to see how legislation plays out. Certainly, election revocations will need to be considered if the law changes.

Conclusion

Whether or not to make the pass-through entity election for Mississippi, or any other state, can be a complicated issue and varies depending on entity and owner considerations. Contact your CRI advisor to discuss specific facts and circumstances regarding your particular situation and if a pass-through entity election is right for you.