Reg. § 1.67-1T 2-percent floor on miscellaneous itemized deductions (temporary).
(a) Type of expenses subject to the floor
(1) In general With respect to individuals, section disallows deductions for miscellaneous itemized deductions (as defined in of this section) in computing taxable income (i.e., so-called “below-the-line” deductions) to the extent that such otherwise allowable deductions do not exceed 2 percent of the individual's adjusted gross income (as defined in section and the regulations thereunder). Examples of expenses that, if otherwise deductible, are subject to the 2-percent floor include but are not limited to—
(i) Unreimbursed employee expenses, such as expenses for transportation, travel fares and lodging while away from home, business meals and entertainment, continuing education courses, subscriptions to professional journals, union or professional dues, professional uniforms, job hunting, and the business use of the employee's home.
(ii) Expenses for the production or collection of income for which a deduction is otherwise allowable under section (1) and (2), such as investment advisory fees, subscriptions to investment advisory publications, certain attorneys' fees, and the cost of safe deposit boxes,
(iii) Expenses for the determination of any tax for which a deduction is otherwise allowable under section , such as tax counsel fees and appraisal fees, and
(iv) Expenses for an activity for which a deduction is otherwise allowable under section .
See section with respect to deductions that are allowable in computing adjusted gross income (i.e., so-called “above-the-line” deductions).
(2) Other limitations Except as otherwise provided in of this section, to the extent that any limitation or restriction is placed on the amount of a miscellaneous itemized deduction, that limitation shall apply prior to the application of the 2-percent floor. For example, in the case of an expense for food or beverages, only 80 percent of which is allowable as a deduction because of the limitations provided in section , the otherwise deductible 80 percent of the expense is treated as a miscellaneous itemized deduction and is subject to the 2-percent limitation of section .
(b) Definition of miscellaneous itemized deductions For purposes of this section, the term “miscellaneous itemized deductions” means the deductions allowable from adjusted gross income in determining taxable income, as defined in section , other than—
(1) The standard deduction as defined in section ,
(2) Any deduction allowable for impairment-related work expenses as defined in section ,
(3) The deduction under section (relating to deductions if annuity payments cease before the investment is recovered),
(4) The deductions allowable under section for personal exemptions,
(5) The deduction under section (relating to interest),
(6) The deduction under section (relating to taxes),
(7) The deduction under section for losses described in subsection (c)(3) or (d) of section ,
(8) The deduction under section (relating to charitable contributions and gifts),
(9) The deduction under section (relating to deductions for amortizable bond premiums),
(10) The deduction under section (relating to medical and dental expenses),
(11) The deduction under section (relating to deductions in connection with cooperative housing corporations),
(12) The deduction under section (relating to moving expenses),
(13) The deduction under section (relating to the deduction for estate taxes in the case of income in respect of the decedent),
(14) The deduction under 1341 (relating to the computation of tax if a taxpayer restores a substantial amount held under claim of right), and
(15) Any deduction allowable in connection with personal property used in a short sale.
(c) Allocation of expenses If a taxpayer incurs expenses that relate to both a trade or business activity (within the meaning of section ) and a production of income or tax preparation activity (within the meaning of section ), the taxpayer shall allocate such expenses between the activities on a reasonable basis.
(d) Members of Congress
(1) In general With respect to the deduction for living expenses of Members of Congress referred to in section , the 2-percent floor described in section and of this section shall be applied to the deduction before the application of the $3,000 limitation on deductions for living expenses referred to in section . (For purposes of this , the term “Member(s) of Congress” includes any Delegate or Resident Commissioner.) The amount of miscellaneous itemized deductions of a Member of Congress that is disallowed pursuant to section and of this section shall be allocated between deductions for living expenses (within the meaning of section ) and other miscellaneous itemized deductions. The amount of deductions for living expenses of a Member of Congress that is disallowed pursuant to section and of this section is determined by multiplying the aggregate amount of such living expenses (determined without regard to the $3,000 limitation of section but with regard to any other limitations) by a fraction, the numerator of which is the aggregate amount disallowed pursuant to section and of this section with respect to miscellaneous itemized deductions of the Member of Congress and the denominator of which is the amount of miscellaneous itemized deductions (including deductions for living expenses) of the Member of Congress (determined without regard to the $3,000 limitation of section but without regard to any other limitations). The amount of deductions for miscellaneous itemized deductions (other than deductions for living expenses) of a Member of Congress that are disallowed pursuant to section and of this section is determined by multiplying the amount of miscellaneous itemized deductions (other than deductions for living expenses) of the Member of Congress (determined with regard to any limitations) by the fraction described in the preceding sentence.
(2) Example The provisions of this may be illustrated by the following example:
Example. For 1987 A, a Member of Congress, has adjusted gross income of $100,000, and miscellaneous itemized deductions of $10,750 of which $3,750 is for meals, $3,000 is for other living expenses, and $4,000 is for other miscellaneous itemized deductions (none of which is subject to any percentage limitations other than the 2-percent floor of section ). The amount of A's business meal expenses that are disallowed under section is $750 ($3,750 × 20%). The amount of A's miscellaneous itemized deductions that are disallowed under section is $2,000 ($100,000 × 2%). The portion of the amount disallowed under section that is allocated to A's living expenses is $1,200. This portion is equal to the amount of A's deductions for living expenses allowable after the application of section and before the application of section ($6,000) multiplied by the ratio of A's total miscellaneous itemized deductions disallowed under section to A's total miscellaneous itemized deductions, determined without regard to the $3,000 limitation of section ($2,000/$10,000). Thus, after application of section and section , A's deduction for living expenses is $4,800 ($6,750−$750−$1,200). However, pursuant to section , A may deduct only $3,000 of such expenses. The amount of A's other miscellaneous itemized deductions that are disallowed under section is $800 ($4,000 × $2,000/$10,000). Thus, $3,200 ($4,000−$800) of A's miscellaneous itemized deductions (other than deductions for living expenses) are allowable after application of section . A's total allowable miscellaneous itemized deductions are $6,200 ($3,000 + $3,200).
(e) State legislators See with respect to rules regarding state legislator's expenses.
[T.D. 8189, 53 FR 9875, Mar. 28, 1988]