Legislative Update and Treasury’s Effective Rate Study

Legislative Outlook, Post-Boehner Announcement

Speaker Boehner’s announcement that he plans to retire at the end of October has implications for tax policy and next year’s spending levels.  Here’s our outlook for both.

International Tax Reform:  Lots of noise on the tax front.  The latest rumors on the Ryan-Schumer plan to pair highway funding with international tax reforms are that:

  1. The plan is complete and has been sent up to the Administration for their review and sign-off;
  2. The plan is not finished and is hung up over a disagreement regarding how much to spend on highways;
  3. The plan will be presented to the Ways & Means Committee members this morning,
  4. Only options will be presented to Ways & Means Members this morning;
  5. All of the above; and/or
  6. None of the above

One rumor we’ve heard that does appear to be valid is that the innovation box and base erosion provisions have been redrafted to reflect the comments the Committee has received over the past couple months, including the addition of pass through businesses to the innovation box benefits.

Can a package of international reforms and highway funding pass?  The ascension of Kevin McCarthy to Speaker should help. He had this to say on Morning Joe earlier this week:

“If we pass a highway bill with tax reform at the same time, that’s policy. That changes the inversion process; that means more money comes back to America.  That puts a six-year highway bill on to the floor and starts moving and building roads that we need in American infrastructure.”

Not everyone is convinced.  Politico reports this am that Finance Chair Orrin Hatch remains “doubtful” a deal can be struck in time:

“Frankly, I don’t see how you can do what they want to do in this length of time frame that we have,” said Hatch. “We need to solve the highway bill now.”   

Meanwhile, taxwriters were targeted with competing letters on international reform, the first from left-leaning economists who dislike them and the second from a small group of US-based multi-nationals who support them, particularly the innovation box parts of the plan.

Where that leaves us is anybody’s guess, but the renewed focus on the larger tax reforms will once again push off action on the much needed extenders bill.  It’s now October, and those provisions have been expired for more than nine months.  Just saying.

Budget and Debt Limit: On the other side of the ledger, Boehner’s pending retirement freed him up to negotiate a short term spending bill to keep the government open through December 11th, and appears to set the stage for a Boehner-led year-long spending bill to move through Congress prior to the end of October.  The goal is to get next year’s contentious spending and debt limit votes out of the way before McCarthy takes over as Speaker, to give him a clean start so to speak.

Treasury gave that effort a little momentum with their most recent debt limit letter, which suggests the government will run out of credit and need to shut down around November 5th, about a month earlier than previously thought.  The earlier drop dead date is attributed to lower than expected tax revenue collections.  Not good.

So two tracks for tax and spending for the month of October – track one is the on-going Ryan-Schumer effort to couple highways with international tax reforms, and track two is the effort to fund the government for 2016 coupled with raising the debt limit before the November deadline.  It is possible these two negotiations are combined before the end of the month, but for the moment they appear to be taking place in two different rooms with two different groups of negotiators.  Should be an interesting October.

New Treasury Effective Rate Study

Economists at the Department of Treasury and NBER last week released a paper reviewing the average taxes paid on business income, by entity type.  We went through a similar exercise several years ago (you can read our study here), so we printed up a copy and took a look.  Here’s the headline graph:

Treasury Rate Chart

As you can see, the average tax rates for S corporations and C corporations are in the same basic range, while the averages for sole proprietorships and partnerships are significantly lower.  Below we itemize our initial thoughts regarding the substance of the paper and the quality of the estimates.

Click here to read the full post.

Big Picture on Pass-Through Taxation

Our expectation for 2013 is continued guerrilla warfare on specific tax hike proposals coupled with the looming threat of larger tax hikes when Congress next addresses the debt limit. Add in the determination of both tax-writing committee chairmen to pursue comprehensive reform, and you have a good understanding of how we’re going to spend our time over the next year:

  • Working with the tax committees to make their tax reform proposals as business friendly as possible;
  • Fighting the Administration’s efforts to turn tax reform into another opportunity to raise taxes on Main Street Employers; and
  • Fighting specific proposals to unfairly target S corporations and raise their taxes through discrete provisions like the payroll tax hike.

The President’s State of the Union address this week did little to change this outlook. In a world where 99 percent of policymakers agree that tax reform means lower marginal rates imposed on a broader base of income, the President’s view (illustrated by last year’s corporate reform proposal and his continued support of higher marginal rates) is just the opposite – higher marginal rates coupled with more special interest tax provisions. It’s the same anti-tax reform perspective offered by Senator Chuck Schumer late last year.

It’s this difference in perspectives that’s behind the pessimism over whether Congress will tackle tax reform this year. The gap appears just too large for Congress to find common ground and it would require a very, very large catalyst to bridge it.

Well, it’s possible that just such a catalyst is right on the horizon. The combination of sequestration cuts starting next month and the need for Congress to raise the debt limit before the August break is just the sort of ”rock and a hard place” scenario that could compel action.

Here’s why. The pain, political and otherwise, from the sequestration cuts will not be felt immediately but will instead grow over time. Each month will bring additional stories of how the cuts are adversely affecting Americans and US policy. Meanwhile, we know from experience that the House of Representatives will resist raising the debt limit without some sort of accompanying deficit reduction package.

So, starting this summer, Congress will be under tremendous pressure to revisit the sequestration cuts at the same time the tax-writers are talking tax reform and the House is insisting on additional deficit reduction. All while Congress is facing a deadline to extend the “must-pass” debt limit.

For these reasons, we’re taking tax reform seriously. The debt limit-tax reform scenario may play out differently, but the risk is simply too great to do otherwise.

We Are All for Comprehensive Reform Now

Two years ago, the S Corporation Association undertook the effort to combat “corporate-only” tax reform. We support cutting the corporate rate, but tackling the corporate tax code in isolation is bad policy and bad politics, and with the help of our E&Y study on the subject, we were able to quantify just how bad it would be for businesses organized as pass-through businesses…”$27-billion-a-year-in-higher-taxes” bad.

House Ways and Means Committee Chairman Dave Camp has always understood this challenge and has been a consistent advocate for comprehensive reform. Recent comments by Senate Finance Committee Chairman Max Baucus suggest he too understands the important role pass-through businesses play in jobs and investment – at 69 percent, his home state of Montana has the highest percentage of pass-through employment in the nation, after all.

With his comments in the State of the Union, it appears the President too has converted to the church of comprehensive tax reform. Here’s what he said:

Now is our best chance for bipartisan, comprehensive tax reform that encourages job creation and helps bring down the deficit. We can get this done.

Of course, he coupled that statement with a call for raising tax rates on high-income individuals, raising taxes on the overseas operations of multinational corporations, and for continued use of the tax code to target specific industries and taxpayers, so we’re not getting too excited here.

But the word “comprehensive” remains significant. Until somebody says otherwise, we’ll assume this means the President has backed away from his corporate-only proposal of last year. Let’s hope so.

Sequestration Highlights Threat to Pass-Through Businesses

Efforts to replace the sequestration spending cuts have highlighted the on-going threat S corporations and other pass-through businesses face this Congress.

For example, on Tuesday, Senators Whitehouse (D-RI) Levin (D-MI), Harkin (D-IA) and Sanders (I-VT) introduced two bills to offset the sequester with tax hikes. The first includes tax increases necessary to postpone the sequester until October 1, while the second would raise the taxes necessary to replace it entirely. As you can see, it’s the usual suspects list of LIFO and Carried Interest tax hikes, etc.

Another list posted by Politico reported the other day includes even more items:

POSSIBLE SENATE DEM SEQUESTER REPLACEMENTS - These ideas are making the rounds:

1) closing off a variety of “offshore tax shelters”;

2) ending preferential tax treatment for many private equity and hedge fund managers;

3) taxing the exercise of stock options more heavily

AMONG THE REVENUE ESTIMATES

1) Closing Carried Interest (14 billion);

2) Closing Corporate Jet (4 billion);

3) Closing Oil & Gas Credits (21 billion)

4) Farm Direct Subsidies (5 billion);

5) Closing S Corp pass Through (76 billion);

6) New Sen. White House Tax Proposals;

a) Set Min Rate for Millionaires;

b) higher rates for Oil & Gas;

c) SubPart F changes: Focus on Passive Income, Transfer Pricing & Loans to Parent Co.

Again, it’s the usual list, but what is this?

5) Closing S Corp pass Through (76 billion);

Closing S corporations? $76 billion? That’s a new one, and the description is just vague enough that it could be anything. That said, the only S corporation tax item out there with $76 billion attached to it that we know about originates with a Congressional Budget Office report from December entitled, Taxing Businesses Through the Individual Income Tax.

Here’s the key sentence:

The Congressional Budget Office (CBO) estimates that if the C-corporation tax rules had applied to S corporations and LLCs in 2007 and if there had been no behavioral responses to that difference in tax treatment, federal revenues in that year would have been about $76 billion higher.

In other words, if Congress repealed the current tax status of around 7 million private companies and subjected them instead to the double corporate tax, the CBO says you might raise some money. But $76 billion a year?B Not likely:

Behavioral responses-for example, owners of S corporations might have reduced those corporations’ taxable income by reporting larger amounts for their compensation (which would have raised payroll taxes and lowered corporate income taxes relative to CBO’s estimate)-would have changed the amount of additional tax revenue that would have been collected. Furthermore, the estimate does not account for interactions with other tax provisions, such as the alternative minimum tax.

Later in the paper, the CBO makes clear such a policy would result in less investment, lower wages, and more debt:

Nevertheless, the trend toward pass-through entities’ accounting for a larger share of business activity has some positive aspects. For example, it has probably reduced the overall effective tax rate on businesses’ investments, thus encouraging firms to invest. (The effective tax rate combines statutory rates with other features of the tax code into a single tax rate that applies to the total income generated over the life of an investment.) The shift in activity toward pass-through firms has also reduced at least two biases associated with the current corporate income tax that influence what businesses do with their earnings and how they pay for their investments:

  • The bias in favor of retaining earnings rather than distributing them, which results from taxing dividends immediately but deferring the taxation of capital gains; and
  • The bias in favor of debt financing, which results from allowing businesses, when they calculate their taxes, to deduct from their income the interest they pay to creditors but not the dividends they pay to shareholders.

It’s clear to us that whoever added this idea to the list likely had no clue what they were proposing, but it’s also in indication of just how desperate some in Congress are for revenue that they would even list something like this.

Forcing 7 million businesses into the double corporate tax is simply bad policy. It moves the tax code in exactly the wrong direction – we should be reducing the double tax, not increasing it. That’s the way to reduce the cost of capital and make American businesses more competitive.

Tax Outlook

The conventional wisdom in the press is that the agreement on the fiscal cliff killed tax reform. By making permanent so many tax policies — including the AMT treatment and estate tax rules — the deal deprived policymakers of catalysts for doing something big on taxes later this year.

That view may prove correct, but there remain several good reasons to believe taxes will be a big part of the policy conversation moving forward, including:

  • Debt Limit: The debt limit fight hasn’t been avoided, just delayed. Congress will need to raise the limit prior to the August break, setting up a redo of the 2011 negotiations that resulted in $2 trillion in deficit reduction over ten years.
  • Budget Season: By delaying the debt limit fight, Congress put the focus back where it should be — on budgets and the long-term fiscal imbalance. The House, Senate, and White House will all need to produce their vision for federal spending and taxes this spring, helping to set the table for the debt limit fight to follow.
  • Sequestration: The odds of sequestration will take effect as written beginning March 1st ($85 billion in total cuts this year with $43 billion from defense and $11 billion from Medicare) are rising every day. Republicans are determined to keep the focus on spending, and alternatives that replace some or all of the cuts with tax hikes stand no chance in the House. That said, one or two months of sharp cuts to defense spending may be enough to convince Congress that it needs to replace the across-the-board cuts with more targeted ones.
  • The CR: And finally, Congress needs to extend funding for the government when the current continuing resolution expires on March 27th.

Congress will have to deal with each of these items, either individually or in some combination, before the start of summer, which begs the question: How does Congress get past all these fiscal hurdles without dragging tax policy into the discussion? Add in the fact that both the Ways and Means and Finance committees have made clear that reforming the tax code is a priority for 2013, and we’re confident that tax policy will be part of the mix one way or another this year.

What does that mean for S corporations? We see two distinct challenges moving forward.

The first challenge is to ensure that any broad-based changes to the tax code are a net positive for S corporations and other Main Street businesses. As our coalition letter from last year made clear, tax reform needs to be comprehensive, it needs to keep rates on corporate, individual, and pass-through income uniform and low, and it needs to continue to reduce the double tax on corporate income.

Any tax reform that claims to make American businesses more competitive will need to embrace those three goals.

Second, we need to continue to fight ad hoc efforts to raise taxes outside of tax reform. Congress is always hungry for revenues, and in recent weeks policymakers and left-leaning groups have released long lists of “revenue raisers” that include numerous threats to Main Street businesses, including:

  • Increasing payroll taxes on S corporation income;
  • Increasing the effective tax on inventories; and
  • Hiking the estate tax by increasing valuations of family-owned businesses.

As long as federal spending is out of control, this thirst for new revenues will continue and will follow the predictable path from press conference to signing ceremony — target a group of taxpayers, marginalize their legitimacy, and then push to raise their taxes.

Which means the response to challenges 1 and 2 is the same — we need to educate policymakers and the tax press on the economic and social value of S corporations. From our past studies, we know that one out of four workers wakes up every morning and goes to work at an S corporation. We also know that S corporations are in every state, every district, and every industry. Meanwhile, other studies show that S corporations already pay a very high effective tax.

Add it all up, and S corporations are a key and vital part of the local employment base in just about every community in America. Far from being marginal actors in the economy, they are one of its cornerstones.

S-Corp Payroll Tax 

Speaking of ad hoc efforts to raise taxes, the S corporation payroll tax hike is raising its head again.

In the past couple weeks, several left-leaning groups and policymakers have put forward wish lists of whose taxes to hike and by how much. Reports from the Senate Budget Committee Democrats, Citizens for Tax Justice (last year), and the Center for American Progress all encourage Congress to raise taxes on S corporations by making more of their income subject to payroll taxes.

Here’s the write-up from the Center for American Progress report:

Certain highly paid professionals sometimes take advantage of a tax loophole made infamous by former Speaker of the House Newt Gingrich (R-GA) and former Sen. John Edwards (D-NC). These professionals – lawyers, accountants, doctors, consultants, and entertainment professionals -form “S corporations,” whose profits are not subject to Medicare taxes and who characterize much of their income as profits of the business instead of salaries. Regular wage-earners can’t do this, and neither can the owners of other kinds of small businesses. Government watchdogs have flagged the S corporation loophole as an area of rampant abuse. Legislation introduced in the House and Senate in recent years would shut down this loophole, requiring these well-heeled professionals to pay their fair share into Medicare, which would raise $11 billion over 10 years.

Those who follow our efforts will understand that the issue before Congress is not one of loopholes but rather avoidance where the IRS has existing tools to fight it. The IRS already requires the owner/operators of S corporations to pay themselves reasonable compensation for their work at the business. Shareholders who underpay themselves in salary in order to avoid Medicare taxes can be and are successfully challenged.

For example, just last year the Eighth Circuit Court of Appeals ruled in favor of the IRS and against an Iowa CPA who was paying himself a minimal salary compared to his experience and efforts. According to the Court:

Here, the district court found that DEWPC understated wage payments to Watson by $67,044 based on the following evidence:(1) Watson was an exceedingly qualified accountant with an advanced degree and nearly 20 years experience in accounting and taxation; (2) he worked 35-45 hours per week as one of the primary earners in a reputable firm, which had earnings much greater than comparable firms; (3) LWJ had gross earnings over $2 million in 2002 and nearly $3 million in 2003; (4) $24,000 is unreasonably low compared to other similarly situated accountants; (5) given the financial position of LWJ, Watson’s experience, and his contributions to LWJ, a $24,000 salary was exceedingly low when compared to the roughly $200,000 LWJ distributed to DEWPC in 2002 and 2003; and (6) the fair market value of Watson’s services was $91,044. Based on the record, the district court did not clearly err.

So the IRS already has the authority and the tools to go after Gingrich and Edwards if they choose. Admittedly, these tools are “facts and circumstances based,” but so are the fixes proposed in Congress. The version that failed to pass the Senate last year is illustrative of the problem. For example, the proposal applies to:

Any other S corporation which is engaged in a professional service business if 75 percent or more of the gross income of such business is attributable to service of 3 or fewer shareholders of such corporation.

Exactly how is the IRS supposed to determine if 75 percent or more of the gross income is “attributable” to the “service” of three or fewer shareholders? Even if the test were made clearer, this standard might not bring in the revenue its authors claim. In the court decision referenced above, it’s doubtful the CPA would have tripped this test — according to the court record, he came nowhere near generating 75 percent of his firm’s gross revenues.

So the Senate was attempting to fix a problem by giving the IRS less effective tools than it already has, and this was going to raise $11 billion. Sure.

Which brings us back to the M.O. of tax-raisers listed in the first entry — identify a group of taxpayers, challenge their legitimacy, and then raise their taxes. They’ve spent the last decade trying to apply payroll taxes to more S corporation income. Too bad they didn’t spend more time getting the policy right.

Tax Outlook

With the Republican convention behind us and the Democratic one this week, we thought it would be worthwhile to assess what the business community can expect on taxes in the next six months. We break the outlook into three buckets:

  1. First, the need to extend the tax policies set to expire on January 1;
  2. Second, the need to make more fundamental changes to the tax code; and
  3. Third, what to do about those pesky tax “extenders?”

2001 & 2003 Tax Cuts

Bucket one is easiest, since both sides have outlined their positions. The Republican House adopted legislation to generally extend all the 2001 and 2003 tax policies for one year (together with expedited consideration of broader tax reform). One big deviation from previous Republican actions was the decision to extend current estate tax rules ($5 million and 35 percent top rate) rather than the repeal included in the original 2001 legislation.

Senate Democrats countered with legislation (which failed to muster the necessary 60 votes) to extend the middle-class portions of the 2001 and 2003 tax relief only. Investors, business owners, and income-earners making more than $250,000 ($200, 000 for single filers) would see their taxes go up. An exception in the Senate bill was the dividend rate, which would rise to 20 percent rather than the 39.6 percent rate called for under current law. Also, current estate tax rules were not extended, meaning the top rate would revert back to 55 percent next year coupled with a lower, $1 million exemption.

(Neither the House nor the Senate bill addressed the pending new 3.8 percent tax on investment income enacted as part of the health care reform, by the way.)

As to the outlook, the odds of either side prevailing in this fight depend heavily on the election outcome. The election won’t change any votes before next year — the President and Congressional leadership will stay the same — but moral authority plays a key role in moving legislation in lame duck sessions, so, if either side can declare a conclusive electoral victory, their respective position will gain momentum. That’s the positive outlook for action.

Inaction is also possible, however, and should be taken seriously. Several Senate Democrats are already on record arguing against taking any action this year — they say the fiscal cliff is more of a fiscal slope and that there will be time to address these issues in early 2013. Meanwhile, it’s difficult to see how House Republicans accept the Senate position and proactively vote for legislation that raises tax rates on anyone in this political and economic environment.

It’s also difficult to see how President Obama pivots off his current position and signs into a law a comprehensive extension. Finally, the inability or unwillingness of Senate Majority Leader Harry Reid to successfully move large, complex bills in the Senate is a particular challenge and should not be discounted.

For those reasons, we believe a Republican victory in November will signal that Congress will adopt something very close to the House bill — a one-year extension of everything coupled with some sort of expedited reform process — or, if the Senate and President stand firm, do nothing at all. If Democrats prevail, then the likely outcomes shift to either the Senate-debated position of extending just the middle-class relief or, if the House refuses to go along, nothing at all. So, regardless of who wins in November, there’s an even chance nothing gets done.

Additional variables that could affect the outcome include the pending sequestration cuts to defense and the strength of the economy. The worse the economy does, the more likely it is that Congress takes action, and vice versa. Meanwhile, the push by hawks and conservatives to stop the pending cuts to defense could result in them giving in other areas, including tax policy. Something to keep an eye on.

Tax Reform

Bucket two includes tax reform or changes to the tax code broad enough that they look like tax reform. We believe there’s a good chance Congress will act on such a package beginning early next year for the following reasons:

  • It will need to raise the debt limit (again);
  • There’s broad agreement that the deficit needs to be addressed;
  • There’s agreement that our corporate rate is too high; and
  • The annual game of extending all these tax provisions, including rates, the AMT patch, estate tax parameters, and traditional extenders is simply unsustainable and needs to end.

Put another way, Congress will need to raise the debt ceiling sometime early in 2013. To get the House on board, significant spending cuts will need to be part of the package, just like in 2011. To gather additional support, particularly in the Senate, taxes will also need to be part of the package. This tax package could be budget neutral, or it could raise significant levels of revenue. The elections will largely determine that mix.

Let’s say the President and Congressional leaders agree to raise the debt limit coupled with $4 trillion in deficit reduction over the next ten years. An Obama Administration and Democrat-run Senate might seek a 50-50 package of spending cuts and tax increases. A Romney Administration coupled with a Republican Senate might shoot for 100 percent spending cuts. Compromises necessary to move the package through the Congress under either scenario would argue that the final package will fall somewhere in between.

What sort of base-broadening might apply? Likely groupings include:

  • Previously targeted business tax items like LIFO, Section 199, and carried interest;
  • Traditional extenders that fail to gain sufficient support; and
  • Individual tax expenditures, including at least some portion of the exemption for employer-provided health insurance.

So, broad tax changes are likely to be on the table in 2013. A revenue-neutral package would broaden the tax base by eliminating certain tax expenditures and unpopular provisions and use all those revenues to cut rates, while a tax-increasing package would do the same, but cut rates to a lesser degree. As long as the House remains in Republican hands, a package that actually raises headline rates is highly unlikely.

Could Congress get through 2013 without considering broad tax legislation? It’s unlikely but possible, particularly if the Senate remains under Democratic control. The Senate has refused to act in other critical areas in recent years, like doing a budget. But just as the debt ceiling fight forced the Senate’s hand in 2011, we expect the same dynamic to play out in 2013. A budget resolution is optional; raising the debt ceiling is not.

Tax Extenders

Bucket three is the large list of tax extenders, many of which already expired at the beginning of the year. Both the Ways and Means and Finance Committees have taken action to define and adopt a package of tax extenders in recent months, but the ultimate outcome remains unclear.

Just prior to the August break, the Senate Finance Committee adopted legislation to extend a package of expired or expiring tax extenders through 2013. The $205 billion package includes a two-year AMT patch together with an extension of the state sales tax deduction, the higher Section 179 expensing amounts, the R&E tax credit, and the energy production credit and other energy incentives, among other items. Importantly for Washington Wire readers, the package also extends built-in gains tax relief and the basis adjustment for S corporations making charitable contributions of property. The Committee report and legislative language were released last week.

In a foreshadowing of the fight to come this fall, Committee leaders noted that their extender package deleted 20 provisions from extender packages of prior years, while several dissenting Republicans argued that the Committee should have gone further and that they look forward to further reducing the list as part of comprehensive tax reform. Senate leaders are hopeful to consider this legislation on the Senate floor in the few remaining legislative days before the November election, but it’s a full schedule already with only a few days of session.

On the House side, the Ways and Means Committee began their examination of tax extenders back in April, when members had the opportunity to advocate on behalf of their favorite extenders. In June, a panel of tax experts testified on which is the best framework to test each extender provision and eliminate those that fall short. It is unclear if the Select Revenue Subcommittee will hold another hearing in September, but Subcommittee Chairman Pat Tiberi (R-OH) was reported as noting that the House will not act on its version of an extender package until after the November elections, not before.

At that point, the tension between considering an extenders package separately this year or rolling these decisions into a broader tax reform package will have to be addressed. Given that Congress also will face the broader issues of the 2001/2003 tax cuts, sequestration cuts, the FY2013 appropriations process and the rest of the congressional kitchen sink, there’s not a lot of time and continued broad disagreement over direction.

For that reason, we believe it is fifty-fifty that Congress acts on extenders this year, with success most likely tied not to policy, but rather to whether Congress is able to move on some of these other fiscal matters. Movement in those areas would suggest an agreement over extenders is also possible, while a stalemate on the 2001/2003 cuts, spending and sequestration might bleed into the extender debate.

Just to be clear, this is our outlook, but it’s not our preference. Here at S-CORP, our fingers are crossed that Congress returns after the election and resolves all of these critical tax questions. For the business sector, action and clarity are better than inaction and uncertainty, so let’s hope this year’s lame duck session does not live up to its name and is instead positive and productive.

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