The Tax Cuts and Jobs Act (TCJA) was packed with goodies for businesses, but it also seemed to eliminate the popular meal expense deduction in some situations. Now, the IRS has issued transitional guidance via Notice 2018-76 — while it works on proposed regulations — that confirms the deduction remains allowable in certain circumstances and clarifies when businesses can claim it.
 
Before the TCJA, Section 274 of the Internal Revenue Code generally prohibited deductions for expenses related to entertainment, amusement or recreation (commonly referred to as entertainment expenses). It provided exceptions, though, for entertainment expenses “directly related” to or “associated” with conducting business.
 
Sec. 274(k) further limited deductions for food and beverage expenses that satisfied one of the exceptions. A deduction was allowed only if 1) the expense wasn’t lavish or extravagant under the circumstances, and 2) the taxpayer (or an employee of the taxpayer) was present when the food or beverages were furnished. Section 274(n)(1) limited the amount of the deduction to 50% of the expense.
 
The TCJA amends Sec. 274 to disallow a deduction for expenses related to entertainment expenses, regardless of whether they’re directly related to or associated with conducting business. Some taxpayers interpreted the amendment to ban deductions for business meal expenses as though they were deemed to be entertainment expenses. According to the new guidance, though, the law doesn’t specifically eliminate all of these expenses.
 
Rather, the law merely repeals the two exceptions and amends the 50% limitation to remove the reference to entertainment expenses. The TCJA doesn’t address the circumstances in which providing food and beverages might constitute nondeductible entertainment, the IRS says, but its legislative history “clarifies that taxpayers generally may continue to deduct 50% of the food and beverage expenses associated with operating their trade or business.”

Which Meal and Entertainment Expenses Are Deductible Under the TCJA?

Until the IRS publishes its proposed regulations explaining when business meal expenses are nondeductible entertainment expenses and when they’re 50% deductible expenses, Notice 2018-76 creates a five-part test stating that businesses may deduct 50% of business meal amounts if:

1. The expenses are ordinary and necessary expenditures paid or incurred to carry on business,
2. The expenses aren’t lavish or extravagant under the circumstances,
3. The taxpayer (or an employee of the taxpayer) is present at the furnishing of the food or beverages,
4. The food and beverages are provided to current or potential customers, clients, consultants or similar business contacts, and
5. For food and beverages provided during or at an entertainment activity, the entertainment is purchased separately from the food and beverages or the cost of the food and beverages is stated separately from the cost of the entertainment on one or more bills, invoices or receipts.

The IRS recognized that the fifth criterion above could create some confusion. The guidance, therefore, includes illustrative examples.
 
In the first example, a taxpayer invites a business contact to a baseball game, paying for both tickets. While at the game, the taxpayer also pays for hot dogs and drinks. The game is entertainment, so the cost of the tickets is a nondeductible entertainment expense. However, the cost of the hot dogs and drinks, purchased separately from the tickets, isn’t an entertainment expense. Therefore, the taxpayer can deduct 50% of the cost as a meal expense.
 
The second example employs a similar scenario, with the taxpayer inviting a contact to a basketball game. This time, though, the taxpayer buys tickets to watch the game from a suite, with access to food and beverages included. The game again represents entertainment, and the cost of the tickets is nondeductible. The cost of the food and beverages isn’t stated separately on the invoice, rendering it a disallowed entertainment expense, as well.
 
The final example uses the scenario above, except that the cost of the food and beverages is stated separately on the invoice for the basketball game tickets. The cost of the tickets remains nondeductible, but the taxpayer can deduct 50% of the cost of the food and beverages.

What is Nondeductible Entertainment?

The TCJA doesn’t change the definition of “entertainment.” Under the applicable regulations, the term continues to include, for example, entertaining at:

• Night clubs,
• Cocktail lounges,
• Theaters,
• Country clubs,
• Golf and athletic clubs, and
• Sporting events.

Entertainment also includes hunting, fishing, vacation and similar trips. It may include providing food and beverages, a hotel suite or an automobile to a customer or the customer’s family.
 
Be aware that the determination of whether an activity is entertainment considers the taxpayer’s business. For example, a ticket to a play normally would be deemed entertainment. If the taxpayer is a theater critic, however, it wouldn’t. Similarly, a fashion show wouldn’t be considered entertainment if conducted by an apparel manufacturer to introduce its new clothing line to a group of store buyers.

Comment Period Is Open

The IRS has requested comments on future guidance clarifying the treatment of business meal expenses and entertainment expenses, including input on whether and what additional guidance is required and the definition of “entertainment.” Businesses should submit comments to the IRS by December 2, 2018.
 
Please contact a member of your service team, or contact Laura White at lwhite@cohencpa.com for further discussion.

Cohen & Company is not rendering legal, accounting or other professional advice. Information contained in this post is considered accurate as of the date of publishing. Any action taken based on information in this blog should be taken only after a detailed review of the specific facts, circumstances and current law.