Fiscal (Slope) Cliff Forecast

While everyone in Washington waits for Tuesday’s election results, this story in The Hill caught our eye: “Fiscal cliff already weighing on economy.” According to the story:

While the expiring tax cuts and automatic spending cuts that make up the cliff do not take effect until the beginning of 2013, Pawlenty said he is hearing from financial firms that businesses are already halting business activity because they are not sure what will happen.

For example, 61 percent of JPMorgan’s U.S. clients are altering their hiring plans because of the cliff, and 42 percent of fund managers for Bank of America identify it as their greatest investment risk.

That’s consistent with what our S-CORP members are telling us. Faced with higher tax rates, uncertain health insurance prospects, and lagging employment growth, the S corporations we hear from are choosing to forego hiring and investment decisions until they feel more confident about the future of public policy and the economy.

This suggests the so-called fiscal cliff is more of a downward slope, and we’re already on it. Employers are holding back, which is suppressing investment and hiring decisions right now, and that’s reflected in the less-than-stellar jobs and GDP numbers we’ve been seeing for the past six months.

That also means that any signal that Congress is prepared to address the cliff and block these tax hikes would help the economy immediately– not just after January 1st.

So, what’s at stake for S corporations? Here’s a short list:

Tax Rates: The best case is that current rates are extended for 2013. The worst case is total gridlock in Congress and rates rise to their pre-2001 levels and beyond. (Beyond because of the tax hikes included in health care reform). Here’s a table summarizing the options:

Top Rates

Worst Case

Best Case

Wage & Salary

44.7%

37.9%

Cap Gains

23.8%

15.0%

Dividends

44.7%

15.0%

Interest

44.7%

35.0%

S Corp Income

44.7%

35.0%

Keep in mind, the best case scenario includes both extending current rates and repealing the new 3.8 percent investment tax imposed under Obamacare. Not impossible if Romney wins and Republicans take the Senate, but not easy either.

AMT: One of the findings in our E&Y study released this summer was the significant number of pass-through owners who pay the AMT. According to E&Y, of the 2.1 million business owners who earn more the $200,000 annually, 900,000 pay the top two tax rates, while 1.2 million pay the AMT. This suggests that the expiration of the so-called AMT patch last year may have more impact on pass-through business owners than the expiration of the lower rates. Treasury estimates that 30 million additional taxpayers will be pulled into the AMT April 15th under the current rules (if the AMT patch remains expired). The findings of E&Y suggest many of those taxpayers are business owners. Business owners most at risk are those with dependent children and those living in high-tax states like New York and California.

Extenders: Congress has gotten into a [bad] habit of ignoring the expiration of all those tax provisions falling under the title of ’extenders’ — the R&E tax credit, the state and local tax deduction, the shorter built-in gains holding period, etc. The Senate Finance Committee has passed a package of extensions, but the House has yet to act. If and how these important issues are addressed during the lame duck are still to be determined, and unfortunately seem to have taken a backseat to dealing with the “must-do” broader 2001/2003 extenders that are set to expire at year’s end.

Those are the tax provisions directly impacting the S corporation community. Couple them with the spending cuts scheduled to begin January 1st, and the total makes up the $700-plus billion fiscal cliff.

What might happen?

Our friends at International Strategy & Investment in the past suggested that the choice before Congress is not “all or nothing” and we agree. Rather than be constrained by the idea that we will either fall off the cliff or step back entirely, our view is that Congress will take a half-step back, avoiding the most damaging pieces of the cliff while allowing others to take effect. Here’s a list with those cliff provisions most likely to be avoided starting at the top:

More Likely

  • AMT
  • Middle-Class Tax Relief
  • Sequestration
  • Doc Fix
  • Tax Extenders
  • Extended UI Benefits
  • Upper Income Tax Relief
  • Health Care Reform Tax Hikes
  • Discretionary Spending

Less Likely

We’ve highlighted the tax rates on upper income taxpayers, including S corporations, since their extension depends almost entirely on who wins the White House. The odds they get extended is close to zero under President Obama, and perhaps 50-50 under a new Romney Administration. Romney has made clear he will push for them, as has the House — it’s the Democrats in the Senate that are the wild card. As for the rest of the provisions, there may be some movement based on the elections, but not much.

In addition to the policies, there’s a question of timing. The general notion is that any deal on the fiscal cliff must occur before the end of 2012, but several of the provisions listed above could just as easily be dealt with in the first few weeks of 2013 with little additional harm to the economy, particularly if Congress and the incoming Administration effectively signaled what they had in mind. Moreover, with only a few weeks between the elections and the holidays, there may simply be insufficient time for the differing parties to come together.

But that doesn’t mean it’s okay to wait. Action immediately after the election to address the entire fiscal cliff — including the top tax rates — would help improve people’s lives now through increased hiring and increased business investment. Congress should act, and act quickly.

But will they? Not if their recent behavior, particularly in the Senate, is any indication. So our best pre-election guess is that Congress will act eventually, but only at the last minute, and that most of the fiscal cliff will be averted either prior to the end of the year or shortly thereafter.

What’s Next?

The Super Committee announced today that it will not produce any recommendations for Congress to act on next month. The markets are reacting badly, which surprises us. They should have seen this coming. Maybe they were hoping for some sort of signal that Congress can function and is prepared to deal with our ongoing fiscal crisis, but every signal we received for the past two months suggested the Committee was going to fall short.

Now that they have missed the mark, the question becomes, “What’s next?”

For the remainder of 2011, Congress needs to act on the tax provisions set to expire this year. That includes a broad package of tax items, including the larger AMT exemption, the R&E tax credit, and important to the S Corporation Association – the shorter 5-year built-in gains holding period. Also in play is the ongoing payroll tax holiday, the expiration of extended UI benefits, and the so-called “Doc Fix” to postpone pending cuts in Medicare reimbursements.

For next year and beyond, the looming issue confronting S-Corp is the expiration of the current tax rates coupled with the imposition of the new 3.8 percent investment tax, both of which will take place starting January 1, 2013. The net effect will be to raise the top marginal rate on S corporation shareholders from 35 percent to nearly 45 percent.

This sharp tax hike facing S corporations is not the only “policy cliff” confronting folks on January 1, 2013. Also on the list is year one of the cumulative $1.2 trillion in spending cuts (sequestration) that were triggered now that the Super Committee has failed (including significant cuts to defense spending) as well as the need for Congress to raise the debt ceiling again.

All of which suggests Congress is going to have to do something big on the tax and spending front by early 2013, if not before. What would this package look like? There’s a short list of provisions almost certain to form the core, including:

  • Debt ceiling increase together with another package of spending cuts;
  • Extension of the expiring middle-class tax relief (lower rates, marriage penalty relief, refundable child credit, etc); and
  • Extension of the AMT patch.

Beyond this core list, other possible (or likely) provisions could include an extension of upper income tax rates or some sort of broader tax reform, plus new spending cuts in exchange for reducing the pending defense cuts.

In response to this outlook, our goal is two-fold. First, work with our allies to get the provisions that expire this year, including the 5-year BIG holding period, extended into 2012 and beyond.

And second, organize the pass-through business community to make certain that Congress deals with the 2013 “rate cliff” in a timely and thoughtful manner. Congress is going to need to act, and the sooner we can educate policymakers on why, the better off we’ll be.

error: Content is protected !!