Courts Overvalue S Corps

For over 15 years, the IRS has discriminated against S Corporations when it comes to estate taxes and other matters where business valuation plays a role and, for 15 years, S Corp has been fighting them on it.

Our S-Corp advisor Nancy Fannon has written extensively on the subject. In 2007, we told you about her book, The Comprehensive Guide to S Corporation Valuation, which did a great job of laying out the entire issue.

Now, Nancy has followed up with Taxes and Value: The Ongoing Research and Analysis Relating to the S Corporation Valuation Puzzle. You can purchase the book here and you can register here for a special May 20th webinar workshop Nancy is hosting.

For those new to the issue, the challenge is whether the courts take taxes into account when they value S corporations as part of an estate or other legal proceeding.  In many cases, the courts ignore the taxes S corporations pay, resulting in them being subject to 60 percent or higher premium over similar C corporations. As you can imagine, premiums that large have been noticed by the S corporation community.

The discrimination stems from the Gross v. Commissioner case decided in 1999 where the court ruled against “tax affecting” the projected income of the S corporation – that is, adjusting the income down to reflect taxes paid – because S corporations are not subject to the corporate tax.

The tax community will recognize that the court was effectively asserting a distinction without a difference.  The lack of an entity level tax on S corporations is one of form, not substance.  S corporation shareholders are required to pay tax on their business income when it is earned (just like C corporations), regardless of whether the income is distributed (just like C corporations), and often at higher rates than C corporations are subject to.  This reality is lost in the Gross decision.

The effect of that decision is that, in many cases, the IRS fails to adjust the fair market value of an S corporation to reflect the business’s overall tax liability, as they do when assessing the fair market value of a C corporation. Congress should be aware of this on-going discrimination on the part of the IRS against S corporations.

S corporations pay taxes – lots of them — through their shareholders.  As our 2012 Quantria made clear, the average tax burden on S corporations is actually higher than the corresponding burden on C corporations, and this tax burden should be reflected in their fair market value when they are part of an estate.

If S corporation valuation is important to you, read Nancy’s book and watch her seminar.  And know that with the ongoing debate over the estate tax, S-CORP will continue to fight the good fight and ensure family-owned businesses are valued fairly.

Should Main Street Businesses Elect C Corp Status? No!

The idea that corporate-only tax reform isn’t so bad because Main Street businesses can elect C corporation status has been argued for years. But should Congress reduce the corporate tax rate with the expectation that pass-through businesses will just switch to C status to access the lower rates?   The answer is no.  Here are the main points:

  • It’s the opposite of tax reform.  The corporate-only approach to tax reform is effectively “anti-tax reform.” It will return us to the pre-1986 era, when corporate tax rates were significantly lower than individual rates and tax gaming and income sheltering were rampant.
  • It increases the negative effect of the double corporate tax.  Everyone agrees the double corporate tax hurts investment and job creation.  Forcing pass-through businesses (who employ the majority of private sector workers) into the double tax would make it worse.
  • It penalizes business owners when they sell their business.  For many business owners, the sale of their business is their retirement plan.  The tax code recognizes this by taxing any gain from the sale of a pass-through business at the capital gains rate of 24 percent.  On the other hand, any gain from the sale of a closely-held C corporation is taxed twice at a combined rate of over 50 percent!  This double tax punishes entrepreneurs who have spent a lifetime building their business.

1.   Corporate-Only = Anti-Tax Reform

S-Corp Advisor Tom Nichols hit this point in his testimony before the Ways and Means Committee in 2013:

When I first started practicing law in 1979, the top individual income tax rate was 70 percent, whereas the top income tax rate for corporations taxed at the entity level (“C corporations”) was only 46 percent.   This rate differential obviously provided a tremendous incentive for successful business owners to have as much of their income as possible taxed, at least initially, at the C corporation tax rates, rather than at the individual tax rates, which were more than 50 percent higher.

This tax dynamic set up a cat and mouse game between Congress, the Department of the Treasury and the Internal Revenue Service (the “Service”) on the one hand and taxpayers and their advisors on the other, whereby C corporation shareholders sought to pull money out of their corporations in transactions that would subject them to the more favorable capital gains rates that were prevalent during this period or to accumulate wealth inside the corporations.  Congress reacted by enacting numerous provisions that were intended to force C corporation shareholders to pay the full double tax, efforts that were only partially successful.

Efforts to lower the corporate rates while holding steady individual and pass-through rates should be deemed “anti-tax reform.”  They will return us to the world Tom describes above, effectively reversing the broad changes made by Congress in 1986 and creating a tremendous incentive for taxpayers to organize their income to take advantage of the lower corporate rates and then shelter that income from additional tax.

2.    The Double Tax is the Problem

Any tax reform worth the name would seek to reduce or eliminate the double corporate tax by integrating the corporate tax code with the individual tax code.

Here’s what EY had to say about the double corporate tax in the study they did for us back in 2011:

In addition, the flow-through form helps mitigate the economically harmful effects of the double tax on corporate profits, in which the higher cost of capital from double taxation discourages investment and thus economic growth and job creation. Moreover, double taxation of the return to saving and investment embodied in the income tax system leads to a bias in firms’ financing decisions between the use of debt and equity and distorts the allocation of capital within the economy. As tax reform progresses, it is important to understand and consider all of these issues with an eye towards bringing about the tax reform that is most conducive to increased growth and job creation throughout the entire economy. 

By forcing pass-through businesses into the corporate tax while increasing tax rates on shareholders, the tax reform envisioned by the Obama Administration moves in the opposite direction and will hurt job creation and investment.  Under the Obama Administration’s plan:

The top marginal rate for pass-through businesses remains at 44 percent;

  • The corporate rate drops to 28 percent;
  • The tax on dividends increases to 28 percent; and
  • All these rates apply to a broader base of income.

Today, shareholders of an S corporation making $100 pay a top tax of $44 regardless of whether the income is distributed to shareholders or retained by the business.  How would the Obama proposal affect that company?

  • Under the Obama plan, S corporation income would still pay a top marginal rate of 44 percent, only on a broader base of income.  The taxes on pass-through businesses would go up.
  • Meanwhile, the Administration would cut the corporate tax rate to 28 percent while raising the dividend rate to 28 percent, so a C corporation would pay an initial tax of $28 plus another $20 for any dividends paid to taxable shareholders.  These rates would apply to a broader base of income too, so it’s difficult to say whether any particular corporation would end up paying more or less tax under the Obama plan.

Under these rules, an S corporation could convert to C and reduce its initial tax bite from $44 to $28.  It would then face a choice: Either retain its income at the firm and avoid the second layer of tax, or pay out a dividend and trigger another $20 in taxes (28 percent of $72) for a total tax hit of $48.  Again, this combined rate would apply to a broader base of income.

In other words, the only way the S corporation lowers its tax burden by converting to C is if it then stops any dividend payments and keeps the income within the corporate structure.  Tax reform should seek to reduce this type of distortionary incentive, not increase it.  The double tax on corporations makes US businesses less attractive to investors and less competitive in the world marketplace.  Forcing more businesses into the harmful double tax simply makes no sense.

3.    Double Tax Applies to Business Sales

The “they can just convert” argument also ignores the penalty that closely-held C corporations face when they are sold.  Closely-held C corporations currently face a combined federal tax rate of more than 50 percent when they are sold, versus just 24 percent for the sale of the business by an S corporation.  Under the Obama approach of lower corporate rates but higher capital gains rates, the effective tax would be 48 percent.

This double tax makes switching to C corporation status a non-starter for entrepreneurs who might want to sell their business someday.  Many business sales are tied to the retirement of the owner, where the proceeds are used to fund his or her retirement, so rates that high are a threat to their retirement security.  It’s different for publicly held C corporations.  Individual stockholders can sell their stock at any time, often at higher multiples as the stock of a public company enjoys a more liquid market.

So arguing that pass-through businesses can “just convert” simply is not credible.  Some businesses might be in a position to switch to C status, but there are higher taxes waiting on the other side, along with unproductive tax complexity that does nothing to enhance business productivity.  Given that pass-through businesses employ more than half the private sector workforce, how does any of this make sense?  More broadly, how does forcing more companies into the inefficient and investment-stifling double tax model make America’s companies more competitive?  Sounds like a plan to do the exact opposite.

 

Tax Reform Rehash

The release of Finance Committee tax reform discussion drafts on cost recovery and international tax have laid bare a reality that’s been hiding just below the surface for two years now the visions for reform embraced by the key House and Senate tax writing committees are dramatically different and move in opposite directions.

The international drafts are a good example. The Ways and Means draft would move the tax treatment of overseas income towards a territorial system, while the Baucus draft would move towards a more pure worldwide system by largely eliminating deferral. Here’s how the Tax Foundation described it:

Of the 34 most advanced countries, 28 use a territorial tax system, while only 6, including the U.S., use a worldwide tax system with deferral. No developed country imposes a worldwide tax system without deferral, though some have tried it with near disastrous effects.

Exactly how the two committees could bridge these broad differences in vision is unclear.

For pass-through businesses, the differences are just as stark. Neither committee has released details on overall rates or the treatment of pass-through businesses, but both have made clear the general direction they plan to take.

The Ways and Means Committee seeks comprehensive reform where the top rates for individuals, pass- through businesses, and corporations would be lowered and the differences between them reduced, helping to restore the rate parity that existed from 2003 to 2012. Other provisions in Chairman Camp’s draft would seek to close the differing treatment of partnerships and S corporations, creating a stronger, more coherent set of pass-through rules.

Finance Chairman Max Baucus, on the other hand, appears to actively oppose rate reductions for individuals and pass-through businesses even as he constructs his reform package around a core of cutting rates for C corporations. The inherent inconsistency of lowering corporate rates to make US businesses more competitive while simultaneously defending significantly higher rates on pass-through businesses is stark. The Baucus draft does make a vague reference to “considering” the impact on pass-through businesses, but it is clear that consideration amounts to nothing more than increased small business expensing or something similarly limited.

So the Finance Committee would cut corporate rates and ask S corporations and other pass through businesses to help pay for them. In the end, C corporations would pay a top rate of 28 or 25 percent, while pass-through businesses would pay rates 13 to 20 percentage points higher.

How do they justify this disparate treatment? The double tax on corporate income is often raised as leveling factor. As the Washington Post recently reported, “Today, the Treasury estimates, as much as 70 percent of net business income escapes the corporate tax.”

But “escaping” the corporate tax is not the same as escaping taxation. The simple fact is that pass through businesses pay lots of taxes, and they pay those taxes when the income is earned. The study we released earlier this year found that S corporations pay the highest effective tax rate (32 percent) followed by partnerships (29 percent) and then C corporations (27 percent on domestic earnings).

These findings include taxes on corporate dividends, so some of the double tax is included. They do not include capital gains taxes due to data limitations. Including capital gains would certainly close the gap between C and S corporations, but enough to make up 5 percentage points of effective tax? Not likely. Meanwhile, the study focused on US taxes only, so it doesn’t attempt to capture the effects of base erosion or the ability of C corporations to defer taxes on foreign income for long periods of time.

All in all, the argument against pass through businesses is based on some vague notion that these businesses are not paying their fair share. The reality is just the opposite. By our accounting, they pay the most. That means that, all other things being equal, today’s tax burden on S corporations makes them less competitive than their C corporation rival down the street.

Real tax reform would seek to make all business types more competitive by lowering marginal rates while also helping to level out the effective tax rates paid by differing industries and business structures. That’s the basis behind the three core principles for tax reform embraced by 73 business trade associations earlier this year: reform should be comprehensive, lower marginal rates and restore rate parity, and continue to reduce the double tax on corporate income.

These principles are fully embraced by Chairman Camp and the Ways and Means Committee. They appear to have been rejected by the Finance Committee. Which begs the question: What exactly is the goal of the Finance Committee in this process? Is it just to raise tax revenues? You don’t need “reform” to do that.

Whatever their goal, the gap between the House and the Senate is enormous, and unlikely to be closed anytime soon. Chairman Camp continues to press for reforms that would improve our tax code, but he’s going to be hard pressed to find common ground with what’s being outlined in the Senate.

Extenders

With the timeline for tax reform being pushed back, there is a bit more discussion of what to do about tax extenders. The whole package of more than 60 provisions expires at the end of the year and to date there’s been little discussion regarding how or when to extend them. As the Tax Policy Center noted this week:

It isn’t unusual for these mostly-business tax breaks to temporarily disappear, only to come back from the dead a few months after their technical expiration. But this time businesses are more nervous than usual. Their problem: Congress may have few opportunities to continue these so-called extenders in 2014. This doesn’t mean the expiring provisions won’t be brought back to life. In the end, nearly all will. But right now, it is hard to see a clear path for that happening.

While the future is murky as always, a few points of clarity do exist:

  • Nothing will happen before the end of the year. The House will recess this weekend and not return for legislative business until mid-January. Even if it took up extenders promptly after returning, which is highly unlikely, the soonest an extender package can get done would be February or March.
  • Coming up with $50 billion in offsets to replace the lost revenue will also be a challenge. Congress is tackling a permanent Doc Fix right now, which requires nearly three times that level of offsets. Coming up with an additional $50 billion will not be easy.
  • The lack of an AMT patch also is hurting urgency for the package. Congress permanently addressed the Alternative Minimum Tax earlier this year, which is good news, but that action also removed one of the most compelling catalysts for moving the annual extender package. Annually adopting the AMT patch protected 20 million households from higher taxes. That incentive is now gone.

All those points suggest that the business community has a long wait before it can expect to see an extender package move through Congress.

Or does it? One of the most popular extenders is the higher expensing limits under Section 179. This small business provision allows firms to write-off up to $500,000 in capital investments in 2013, as long as their overall amount of qualified investments is $2 million or less.

Beginning in 2014, these limits will drop to $25,000 and $200,000 respectively.

You read that correctly. Starting January, business who invest between $25,000 and $2 million in new equipment will no longer be able to write-off some or all of that cost in year one. Talk about an anti-stimulus. Coupled with the loss of bonus depreciation, the R&E tax credit, and the 5-year holding period for built in gains, and the expiration of extenders will have a measurable effect on the cost of capital investment for smaller and larger businesses alike.

This reality is beginning to sink in both on Main Street and the investment community, where certain industries rely on these provisions as a core part of their business plans in coming years. It’s too soon to see how much momentum the loss of these provisions will generate in coming months, but cutting the expensing limit from $500,000 to $25,000 in one year is bound to attract somebody’s attention.

Forbes on Pass Through Businesses

Marty Sullivan always writes interesting and provocative pieces on tax policy, so when we saw his recent piece in Forbes on tax reform Should Small Business Have Veto Power Over Corporate Tax Reform, we read it eagerly.

It’s provocative, alright, but we do have a couple observations.

Marty argues that pass through business advocates “willfully omit the existence of the corporate double tax from their spin and howl” regarding tax reform. Really?

We don’t howl, and we don’t ignore the existence of the double corporate tax. It’s a central part of our message on how to build a foundation for good tax reform. Our Pass-Through Tax Reform letter signed by more than 70 business organizations calls for reform that embraces three basic principles:

  1. Reform should be comprehensive;
  2. Reform should restore rate parity; and
  3. Reform should reduce the double tax on corporate income.

It’s hard to ”omit” the double tax when its reduction is one of your key principles.

There are lots of other examples, but the testimony one of our advisors presented before the House Ways & Means Committee back in 2012 stands out:

First, as much as possible, the business tax system in the United States should move toward a single tax structure, and away from the punitive double tax C corporation system. Especially for closely-held businesses, a single tax system substantially reduces complexity and eliminates the opportunity and incentive for non-productive tax planning and strategizing. Moreover, it has the benefits of simplicity and transparency.

Marty should remember that testimony. He was sitting right next to him.

Marty argues that our effective rate study says that “corporations are getting away with murder.” Again, not true. The study’s focus is on the effective tax burden paid by pass through businesses. To our knowledge, this analysis has never been done before and it shows that S corporations and partnerships will pay very high effective tax rates in 2013:

  • S Corps: 32 percent
  • Partnerships: 29 percent

Large S corporations making more than $200,000 will pay even higher rates: 35 percent!

The study does calculate C corporation effective rates for comparison purposes, but makes clear there are many ways to calculate the C corporate rate and that foreign income and taxes are a complication that needs to be acknowledged. An alternative measure included in the study, looking only at domestic C corporation income, has the C corporation effective rate at 27 percent.

The study doesn’t omit the double tax either. The C corporation calculation includes dividends payments (but not capital gains taxes due to data limitations). The study finds that the dividend tax does not increase effective tax rates significantly:

Our results suggest that C corporation dividends raises their average effective tax rate by only 2 percentage points. The primary reason for this result is that C corporations do not pay significant amounts of dividends. IRS SOI data indicate that approximately 4.5 percent of C corporations paid cash dividends in 2009.

Finally, we have to say something about the title of the piece. We know writers don’t get to pick their headlines, so we’ll lay this bit of logical inconsistency at the feet of the Forbes editors.

The pass through business community is not asking to veto anything.B They are asking not to have their tax burden raised substantially on top of the tax hike they just shouldered starting 2013.B Budget neutral, corporate-only reform, as outlined by the Obama Administration, among others, would do just that. It would cut taxes for large corporations and raise them for pass through businesses.

If the point of reform is to encourage domestic job creation and investment, only reform that includes pass through businesses will get you there.B Ernst & Young reported that pass through businesses employ more people and contribute more to national income than their C corporation friends, so raising their taxes in order to cut taxes for C corporations is not going to help encourage hiring or investments.

Moreover, creating a tax code where similar business income is subjected to two very different rates – 28 percent for C corporations but nearly 45 percent for individuals and pass through businesses under the Obama plan – would encourage the gaming and income shifting prevalent in the tax shelter days before 1986. Again from Tom’s 2012 testimony:

When I first started practicing law in 1979, the top individual income tax rate was 70 percent, whereas the top income tax rate for corporations taxed at the entity level (C corporations) was only 46 percent. This rate differential obviously provided a tremendous incentive for successful business owners to have as much of their income as possible taxed, at least initially, at the C corporation tax rates, rather than at the individual tax rates, which were more than 50 percent higher…

This tax dynamic set up a cat and mouse game between Congress, the Department of the Treasury and the Internal Revenue Service (the “Service”) on the one hand and taxpayers and their advisors on the other, whereby C corporation shareholders sought to pull money out of their corporations in transactions that would subject them to the more favorable capital gains rates that were prevalent during this period or to accumulate wealth inside the corporations. Congress reacted by enacting numerous provisions that were intended to force C corporation shareholders to pay the full double tax, efforts that were only partially successful.

Under corporate-only tax reform, we would be right back in the pre-1986 world Tom is describing. It is anti-tax reform, in every sense.

More on Business Tax Reform

The pass through community has a new ally. In an op-ed posted on CFO.com, Douglas Stransky, a partner at the law firm Sullivan & Worcester, pushed back on President Obama’s corporate-only tax reform proposal introduced earlier this year:

If you want to stimulate the economy through tax reform, however, you should also pay attention to the tax burden on the companies creating the most jobs. According to the U.S. Small Business Administration, firms with less than 500 employees accounted for 67 percent of the new jobs since the recession ended. Those are companies led by entrepreneurs, who are building businesses around new products or services and expanding their payrolls.

Yet the discussion about corporate tax reform has only focused on large, multinational corporations, and not small businesses…The S Corp, partnership and sole proprietorship tax rate has not been the focus of corporate tax reform in Washington. But it should be. If the C Corp rate of 35 percent is reduced to 28 percent it will leave an inequity in the tax structure between large and small businesses. This is senseless, especially when it’s assumed that lower income tax rates would enable employers to have more money to reinvest in their companies and create more jobs.

…The average American thinks corporate tax reform will apply to any U.S. business. But what is being discussed will apply only to a small percentage. Small businesses are the engine of our economy. If we reform taxes for S Corps as well as C Corps, that engine will run more efficiently.

Amen, amen.

S-Corp Supports Plan B

Text of the letter we sent to Speaker Boehner earlier today:

Dear Speaker:

The S Corporation Association would like to thank you for all your work over the past two years to protect closely-held businesses and ensure that as Congress considers changes to the tax code, privately-owned businesses are not harmed or singled out.

With that in mind, the S Corporation Association supports H.J. Res. 66, the “Permanent Tax Relief for Families and Small Businesses Act of 2012.” While H.J. Res. 66 would allow tax rates to rise for S corporation owners with incomes above $1 million — something we oppose — it is the best of all the options before Congress and it sets the stage for comprehensive, pro-growth tax reform in 2013.

By making permanent relief from higher rates (up to the $1 million threshold), the estate tax, the Alternative Minimum Tax, and the limitations on deductions, H.J. Res 66 helps privately-held businesses immediately by giving them the certainty they crave. The recent sharp decline in the National Federation of Independent Businesses’ survey of small business owners should serve as a grave warning to all policymakers — Congress needs to act now to provide private employers with certainty or risk seeing the small business sector, and the economy as a whole, pull back and contract. H.J. Res 66 provides some of that certainty.

Moreover, H.J. Res 66 improves the odds that Congress will be able to enact meaningful, comprehensive tax reform in 2013.By making the permanent a large part of the tax code, the legislation ensures that the debate over tax reform will be focused on moving the tax code forward through rate reductions and base broadening, rather than endlessly debating the continuation of existing provisions that are due to sunset sometime in the future.

The S Corporation Association has been a leading voice in the business community in opposing raising marginal tax rates on employers while supporting comprehensive tax reform that lowers rates on all forms of business income. The legislation before the House of Representatives is not perfect, but it is our view that it is the best of all options being considered, and it does the best job of setting the stage for the enactment of positive tax policies moving forward.

Thank you for your efforts and for continuing to defend private enterprise.

The vote on Plan B is scheduled for tonight.

Can Main Street Businesses Elect C Corp Status? Should They?

The idea that corporate-only tax reform isn’t so bad because Main Street businesses can elect C corporation status and access the lower rates has been floating around DC for months, but we’ve never had the idea sourced until last week’s Politico Pro report:

“A lower corporate tax rate that will keep American businesses more competitive in an increasingly global economy is critically important, but it cannot come on the backs of the small business community, which is why corporate reform must be linked with individual reform,”  Caldeira said Tuesday afternoon in his statement to POLITICO.

Groups like the RATE Coalition - which represents larger corporations such as AT&T, Boeing, Ford, Lockheed Martin – dispute this logic.

Elaine Kamarck, the coalition’s co-chair, said last week that the two overhauls should be separate and that small businesses could just switch to the corporate code.

“There’s also an argument that some of those [small] businesses and pass-throughs might become corporate,” she said. “There is nothing that keeps them from switching. Because of the high corporate tax rate they don’t file [under the corporate code]. So I think that is less of a problem than some people would guess it to be.”

A later version of the story included this new quote:

A spokesman for the group, which represents big names such as AT&T, Boeing, Ford and Lockheed Martin, said Tuesday evening, however, that Kamarck’s views were her own and the coalition supports comprehensive tax reform.

We’re glad the RATE Coalition clarified that they support comprehensive reform, but what about the other issue raised here. If the corporate rate is reduced, should pass-through businesses just switch to C status to access the lower rates? The answer is no. Here are the main points:

It’s the opposite of tax reform. Taken as a whole, the corporate-only approach is effectively “anti-tax reform” in that it will return us to the pre-1986 era, when corporate tax rates were significantly lower than the top individual rate and tax shelters and gaming dominated taxpayer behavior.

  • It’s a tax hike either way. S corporations that retain their S status would pay a top rate of 45 percent on their earnings. Meanwhile, those that switch to C corporation status would pay the new lower corporate tax of 25 percent, but also be subject to the second layer dividend tax. The dividend rate is scheduled to rise from 15 to 45 percent next year, so the total effective tax on the new C corporation would be as much as 59 percent! With the lower dividend rate envisioned in the Senate-passed bill, the combined rate still would exceed 40 percent.
  • The double tax applies to the sale of a closely-held C corporation too. When an S corporation owner sells their business, they pay the capital gains rate on any gain. The same treatment applies to the shareholder of a publicly traded corporation — they pay a single tax at the capital gains rate. But gains from the sale of a closely-held C corporation are taxed twice, first at the corporate rate and again at the capital gains rate. Even with the lower corporate rate of 25 percent, that still means a total effective tax of over 40 percent.

Let’s take these points one at a time:

  1. Corporate-Only is Anti-Tax Reform

S-Corp Advisor Tom Nichols hit this point in his testimony before Ways and Means earlier this year:

When I first started practicing law in 1979, the top individual income tax rate was 70 percent, whereas the top income tax rate for corporations taxed at the entity level (“C corporations”) was only 46 percent. This rate differential obviously provided a tremendous incentive for successful business owners to have as much of their income as possible taxed, at least initially, at the C corporation tax rates, rather than at the individual tax rates, which were more than 50 percent higher.

This tax dynamic set up a cat and mouse game between Congress, the Department of the Treasury and the Internal Revenue Service (the “Service”) on the one hand and taxpayers and their advisors on the other, whereby C corporation shareholders sought to pull money out of their corporations in transactions that would subject them to the more favorable capital gains rates that were prevalent during this period or to accumulate wealth inside the corporations. Congress reacted by enacting numerous provisions that were intended to force C corporation shareholders to pay the full double tax, efforts that were only partially successful.

Efforts to lower the corporate rates while raising individual and pass-through rates should be deemed “anti-tax reform.”  They will return us to the world Tom describes above, effectively reversing the broad changes made by Congress in 1986 and creating a tremendous incentive for taxpayers to organize their income to take advantage of the lower corporate rates and then shelter that same income from the higher rates.

  1. Either Way, It’s a Tax Hike

Consider the scenario embraced by the Administration, where the top marginal rate for individuals rises to 45 percent, the corporate rate drops to 25 percent, but the tax on dividends increases to 45 percent:

      • Under the current rules, if our S corporation made $100 dollars this quarter, its shareholders would pay $35 in federal taxes (same as a C corporation) regardless of whether the income is distributed or retained by the business.
      • Next year, under the Obama scenario where the top rate rises to 39.6 percent, plus the new 3.8 percent investment tax, plus the reinstatement of the Pease limitation on deductions, our S corporation’s shareholders could pay as much as $45.
      • Finally, if we were able to convert to C, we would pay $25 initially but then face a choice — either retain the income at the firm and avoid the second layer of tax, or pay out a dividend and pay another $34 in taxes (the 45 percent dividend tax times $75), for a total tax hit of $59. If the dividend rate is 23.8 percent next year (as proposed by the Senate), then the combined tax would be 43 percent.

You’ll notice that the converted C corporation has a very strong incentive to keep its post-tax income within the firm and not pay that second layer of tax. If our business has a single, active shareholder, it might be an option. He can just retain the earnings and adjust his salary and bonus to meet his income needs and shelter the rest (see argument 1).

But what if we have multiple shareholders, many of whom don’t work at the business and rely on the business’ income to finance their lives?  Avoiding the second layer of tax isn’t really an option there, so converting to C would be less attractive, particularly with the possibility of a 45 percent tax rate on dividends.

Meanwhile, for S corporations that retain their earnings, lowering only the headline C corporation rate means that their publicly held competitors would pay a lower tax on earnings retained in the business, in addition to having access to the public markets and all of the other advantages of being a much larger business. Does this make sense when most job creation comes from pass-through businesses?

  1. Double Tax Applies to Business Sales

The “they can just convert” argument also ignores the penalty closely-held C corporations face when they are sold. The 1986 Tax Reform Act applied the double layer of tax onto sales of closely-held C corporations, which means a C corporation sold this year is subject to a combined federal tax rate of nearly 45 percent versus just 15 percent for the sale of an S corporation. Under the Obama approach of lower corporate rates but higher capital gains rates, the effective tax would be 43 percent.

This double tax makes switching to C corporation status a non-starter for any entrepreneur who might sell their business someday. Many business sales are tied to the retirement of the owner, where the proceeds are used to fund their retirement, so rates that high are a threat to their retirement security.

It’s different for publicly held C corporations. Individual stockholders can sell at any time, often at higher multiples, and business to business acquisitions can be done with stock, often on a tax-free basis, once again giving public C corporations a tax advantage over private ones.

So arguing that pass-through businesses can just “convert” simply is not credible. Some businesses might be in a position to switch to C status, but there are higher taxes waiting on the other side. Given that pass-through businesses employ more than half the private sector workforce, how does any of this make sense? More broadly, how does forcing more companies into the inefficient and investment-stifling double tax model make America’s companies more competitive? Sounds like a plan to do the exact opposite.

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