On July 16, 2021, California Governor Newsom signed Assembly Bill 150, which includes a new elective pass-through entity (“PTE”) tax, to provide tax relief for small businesses facing the economic hurdles due to COVID-19. For taxable years beginning on or after January 1, 2021 and before January 1, 2026, qualified entities may elect to pay an optional entity level state tax, and qualifying electing partners will receive a nonrefundable credit against their resident or nonresident California tax liability. If the allowable credit exceeds the individual’s net tax due, the excess is allowed as a carryover to the following five tax years.

Qualified entities that are taxed as a partnership or an S corporation, and have partners, shareholders, or members all of whom are corporations, individuals, fiduciaries, estates, or trusts are eligible to make the election annually on an original, timely filed return.

The tax is imposed at a rate of 9.3% on qualified net income, which is the sum of the pro-rata shares of distributive shares of income of each qualified taxpayer. For tax year 2021, the PTE tax is due on or before the due date of the original return without regard to any extension. For tax years 2022 through 2025, at least 50% of the elective tax paid the prior taxable year or $1,000, whichever is greater, is due by June 15 of the taxable year of the election, and the balance of the elective tax is due by the due date of the original return without regard to any extension. If an entity does not make the first payment by June 15, it may not make the election for that tax year.

Qualified entities should be aware that this PTE tax election is automatically repealed if the federal limitation on the state and local tax (“SALT”) deductions is repealed. There is an open question at the federal level as to whether the SALT tax deduction can be specially allocated to each partner based upon their contribution to the elective tax or whether the federal tax deduction must be allocated on a pro-rata basis.

Refer to Assembly Bill 150 for additional details.