Well the “good” thing about this law is that it also classifies ALL software development (and any supporting activities!) as R&D. And yes that’s as absurd as it sounds, but it’s true.
Your consultants were helping you get a tax credit for R&D under section 163. That has not changed - not all software development is R&D for section 163 purposes, and you still need to justify why you're classifying software development as R&D for section 163.
What has changed is section 174 - previously all software development could be expensed (without any justification needed) and now it must be capitalized.
My understanding[0] is that building product was always categorizable as R&D (though it was up to the company to choose to categorize it that way). What was not R&D was operational expenses (production support, etc).
[0] This is based on working at a company that went through a brief period where we had to do extra tracking to be able to capitalize our time if it was possible, and then reading up on the matter to try and understand what the hell the purpose was. Possible I'm wrong about the matter--I've never been the one doing the finances.
This is actually great if true! Maybe companies will finally be incentivized to start fixing their bugs rather than cramming unwanted features and UI re-designs into their software products!
However I doubt they'd leave such an obvious loophole. Surely the IRS's definition of R&D includes all types of software development activity.
It's not an "obvious loophole". They are quite specific about this. New features, new capabilities: R&D, must be amortized. Bug fixes for existing features: expensable.
The gray zone comes when a bug fix actually provides a new feature (e.g. something that wasn't actually usable before).
If a programmer is building an app that isn't yet offered as a product, is that R&D?
If a programmer is maintaining an app that is offered as a product, is that NOT R&D?