The pass through mantra, supported by more than 100 national business trade groups, is simple – tax business income once, tax it when its earned, tax it at the same reasonable top rate, and then leave it alone!
Do you want to stop inversions and keep American corporations here at home? Adopt the mantra. Do you want to make sure Main Street continues to be a source of job creation and economic stability? Adopt the mantra.
We’ve been on this message for five years, and sometimes you get the sense it’s starting to sink in. For example, the Brady blueprint released earlier this year was significantly improved over the Camp draft that preceded it. Tax rates were lowered for pass throughs and C corporations alike, as was the cost of capital investment in the US. That’s a good thing.
And then you have the last week.
First, the Center for American Progress issued a paper labeling pass through taxation a “loophole” and calling for double taxing all US businesses with more than $10 million in revenues. Ouch. Has CAP noticed that our best corporations are fleeing the US just to avoid the double tax? So why would extending its reach to Main Street be a good idea? See our response to the CAP paper below.
And then there’s this:
“We may end many of the loopholes that are currently being used,” Republican presidential nominee Donald Trump said on CNBC in response to question about the use of so-called passthroughs to lower tax rates.
Asked if it’s fair to say he wouldn’t allow passthroughs, Trump said, “We are looking at that very strongly.” More details are coming within two weeks, he said.
Just to be clear, the “loophole” Trump is referring to is different than the “loophole” CAP references. CAP wants its readers to think the pass through structure itself is somehow a loophole because they pay different taxes than C corporations. We address that bogus concern below.
Trump is referring to the challenge of taxing different forms of income at different rates and the opportunity for tax arbitrage that it creates. As Trump advisor Steve Moore told Politico:
Stephen Moore, one of Trump’s economic advisers, made it clear to Bloomberg and to Morning Tax that the campaign is committed to stopping high-earning individuals from gaming that system. But he added: “All I’ve said is that there will be rules, to make sure that the business income that’s declared is actually business income and not wage and salary income in disguise. How you do that is beyond my pay grade. I’m not a tax lawyer.”
Trump suggested to CNBC that his campaign could roll out those rules within two weeks. But Moore told Morning Tax not to hold our breath: “I doubt it. This is a presidential campaign. This isn’t a Ways and Means markup.”
Mr. Moore is exactly right. This issue has been around for a long time and it’s not going to be resolved in the next two weeks. It’s also a reminder that the best tax reform would restore rate parity to all forms of income – individual, corporate, and pass through alike. Anytime you tax different forms of active income at different rates, you run the risk of arbitrage.
That’s why the Pass-Through Principles letter says, “To ensure that tax reform results in a simpler, fairer and more competitive tax code, Congress needs to reduce the top tax rates to similar levels for all taxpayers.”
Of course, CAP and its allies oppose lowering individual rates, which has created the problem in the first place. How do you make US businesses more competitive without lowering tax rates on individuals? It’s not easy, but we know one thing for certain – you don’t make them more competitive by forcing them all into the double tax.
Pass Through Response to CAP
As noted above, the Center for American Progress (CAP) released a paper this week calling for imposing a double tax on all US businesses with more than $10 million in revenues. The paper has innumerable flaws, but it essentially makes three basic points worth reviewing:
- Pass through businesses contribute to income inequality;
- Pass through businesses are “lightly” taxed and cost the government $100 billion a year in lost revenues; and
- All US businesses above $10 million in revenues should pay the double corporate tax.
You’ll notice that points one and two are merely a rehash of last year’s study by a number of Treasury and NBER economists (Treasury) on effective tax rates for businesses. That study too was deeply flawed. You can read our initial critiques here and here, and we build on those concerns below.
Point three, on the other hand, is totally new territory. CAP would extend the harmful double tax currently imposed on C corporations and apply it to all businesses over $10 million in revenues.
CAP makes no attempt to defend this position on economic grounds, and for good reason. The corporate double tax is widely understood to reduce domestic business investment, lower wages and job creation, and generally encourage the migration of businesses from the US to other countries. Here’s our 2011 EY study on the topic:
The double tax is economically important and can distort a number of business decisions. One important such distortion arises because the double tax mainly affects business income generated by activities financed through equity capital within the C corporation form. Interest expenses are generally deductible by businesses, leading to a tax bias in favor of financing with debt rather than equity. The double tax thus raises the cost of equity financed investment by C corporations relative to debt financed investment and provides an incentive for leverage and borrowing rather than for equity-financed investment. Accordingly, the double tax contributes to the tax bias for higher leverage. Greater leverage can make corporations more susceptible to financial distress during times of economic weakness.
The double tax also increases the cost of investment in the corporate sector relative to the rest of the economy. This tax bias against investment in the corporate sector leads to a misallocation of capital throughout the economy whereby capital is not allocated to its best and highest use based on economic considerations. This reduces the productive capacity of the capital stock and dampens economic growth. As noted before, the diversity of organizational forms can be seen as a useful choice for businesses to make in organizing themselves, but the impact of differential treatment should be recognized. Finally, the double tax raises the overall cost of capital in the economy, which reduces capital formation and, ultimately, living standards.
Reformers might disagree on what the top business tax rate should be, but very few tax experts openly advocate for expanding the double tax. So in this instance, CAP is making itself an outlier in the tax discussion and an advocate for fewer jobs and less investment here in the United States. Not the place to be.
Treasury “Findings” Exaggerated
CAP writes that the Treasury study “implies that the growth of these lightly taxed pass-through businesses cost the federal government $100 billion in 2011.” Notice the use of the weasel word “implies”? CAP had to insert that word because the Treasury study explicitly does NOT find that the growth of the pass through sector has cost the government revenue.
This nuance was lost on the tax reporters at BNA, who dutifully reported that “The growth of passthroughs cost the U.S. $100 billion in lost tax revenue in 2011, according to a Center for American Progress report released Aug. 10.” But Treasury never says that! Here’s what the Treasury study says:
We find that allocating partnership income to traditional businesses results in an average tax rate on business income of 28.1%, which exceeds the average tax rate on business income of 24.3% in 2011 by 3.8 percentage points. Since the pass-through sector earned $1.1 trillion in business income in 2011, an additional 3.8 percentage points on the tax rate would have generated 97 billion more dollars in business tax revenue, which would amount to an approximately 15.5% increase in tax revenues from business income on an annual basis.
We stress that this exercise is not a projection for the likely effects on tax revenue from business tax reform. It is mechanical and assumes no behavioral responses, but has the advantage of being transparent. (Emphasis added)
Transparent? Hardly. BNA wasn’t the only news outlet to get the story wrong. It is wholly misleading for Treasury to toss out this estimate and then say in effect, “Oh, just kidding.”
Treasury has to say “just kidding” because the whole exercise of taking 2011 pass through income and taxing it according to 1980 rules is ridiculous. Which tax rates apply to the newly designated corporate income, those in force today or those from 1980? What about the growth in the business tax base? As we’ve noted in the past, business income today makes up 11 percent of our national income, while it was only 9 percent back in 1986 – that’s bigger and it’s the result of the shift in the taxation from the harmful double tax to the more efficient and competitive single layer pass through tax. Did Treasury adjust tax collections back to 1980 levels to account for this growth? No.
But are pass through businesses really taxed “lightly” as CAP so amusingly claims. No. There too, the Treasury estimates used by CAP have significant challenges. Here’s a list of their problems:
- Treasury uses 2011 filings and tax rules, so it misses the sharp rate hike on pass through businesses that took effect in 2013. The fiscal cliff resolution hiked top tax rates on pass throughs from 36 to 39.6 percent, imposed the new 3.8 percent surtax on top of that, and then restored the old Pease limitation on deductions. The net effect of all this was to increase the tax top tax rate on pass through businesses from 35 to 44.6 percent! Treasury issued their paper just last year, so they could have adjusted their estimates to reflect these higher rates, but they chose not to.
- Treasury assumes shareholder-level taxes add another 9 percentage points to the C corporation average rate, but that assumption is based on economic literature from 2004 rather than tax collections from 2011. It also employs some heroic assumptions about the composition of corporate distributions (Footnote 16 in the Treasury report). A subsequent CRS study earlier this year found that shareholder level taxes added just 2.3 percentage points to the effective tax rate of C corporations, while a recent report by the Tax Policy Center found that only 24 percent of C corporation shares are held in taxable accounts, or less than half the level as assumed by Treasury. More work needs to be done on this!
- For partnerships, Treasury fails to differentiate between active business income and investment income previously taxed at the corporate level, which is obviously taxed at lower rates. The study notes that 70 percent of partnerships are “finance and holding companies” and that “capital gains and dividend income, which are taxed at preferred rates, amount to 45% of partnership income.” To the extent these partnerships are investing in C corporations whose income is already taxed at the entity level, it makes sense that their effective tax rate would be lower than the top statutory rate. Perhaps this partnership income should be included in the C corporation bucket, since they are C corporation shareholders? Something needs to be done to fix this, otherwise you have C corporations credited with both layers of tax, but their partnership shareholders credited with the second layer of tax only.
- Treasury attributes about twenty percent of partnership income to “Unidentified TIN type” and “Unidentified EIN.” It then appears to assume this unidentified income was taxed at a blend of the two lowest applicable rates, resulting in an even lower average rate for partnerships.
- Treasury appears to use “taxable income” in the denominator when calculating their effective tax rates, at least for C corporations. You can read our full concern with this here, but the net effect of using taxable income as the base is to overstate the effective tax rate for C corporations versus other business types.
- Treasury fails to account for the size of business. This is material because while C corporation income comes almost entirely from large, multinational companies, a large portion of pass through income is earned by smaller, less profitable companies who pay the lower income tax rates. To get a true comparison of tax burdens, Treasury should have broken down their estimates by size.
So Treasury overstates the tax paid by C corporations and understates the tax paid by pass through businesses, and then concludes that C corporations pay more. Somebody in the economic world needs to take another run at this topic.
Here’s is the effective rate table from the Treasury report that is reprinted in the CAP report.
You’ll notice that even with Treasury’s flawed approach, S corporations pay a higher effective tax rate than C corporations on their income when it is initially earned, even with the lower rates on pass through businesses in place back in 2011. This is a reality that many policymakers do not understand. S corporations and other pass through businesses pay tax on their income when it is earned, just like C corporations. And today, their top tax rate is much higher than the C corporation rate. Our effective rate study from 2013 included the higher, post-fiscal cliff rates and it found S corporations pay the highest effective rates of all.
So it’s simply inaccurate for CAP to argue that the government would collect more in taxes if it forced businesses paying a top marginal tax rates of 44.6 percent to instead pay the lower C corporation rate of only 35 percent.
What about income inequality? Here’s what CAP says:
Until recently most analyses of income inequality, such as that by Thomas Piketty in Capital in the 21st Century, have ignored the role of pass-through income in the U.S. tax system by allocating it according to a standard economic formula. But, as this report will highlight, it is impossible to understand the growth of income inequality without a deeper look at pass-through income: about 40 percent of the increased share of income going to the top 1 percent of households is explained by pass-through income—twice the contribution of other forms of capital, such as corporate stocks and bonds.
And here’s what we wrote about the Treasury report last year. It all applies here:
Pass through taxation doesn’t add to “income inequality.” C corporation tax treatment masks it. This is something we have written about in the past.
For example, Warren Buffett owns a large share of Berkshire Hathaway. That corporation pays no dividends and Buffett never sells any stock, so if one was just looking at the tax rolls, Buffett’s reported income is relatively low despite the fact that he’s one of the richest men on the planet. All his income is effectively hidden within Berkshire’s corporate structure. Treasury touches on this dynamic in a footnote at the bottom of page 2:
‘Note that this evidence may seem to suggest at first glance that at least a portion (e.g., perhaps 56% x 35% = 20%) of the rise in the top-1% income share could reflect merely a change in how business income is reported on Form 1040 returns: before annual business income taxes (as pass-through income subject to ordinary individual income taxes) rather than after annual business income taxes (as post-corporate-income-tax dividends or capital gains distributions).’
Figure 2 at the back of the paper helps Illustrate this dynamic.
The blue line shows the rise of income inequality, thanks to data from Piketty and Saez. The red line shows how much less inequality would have risen if businesses back in 1980 were taxed as businesses in 2013 – i.e. all that income showed up on the individual tax forms rather than the corporate ones. Lesson: C corporation taxation masks income inequality.
So the economists at Treasury and the NBER issue a flawed study on effective tax rates, CAP repeats the core message and uses it to drive a policy of double taxing US businesses, and the tax press repeats it all without comment or analysis. The assault on private enterprise continues.
BNA Tax Plan Comparison
BNA has a nice chart showing the tax proposals of Clinton and Trump. It is copied below. There is one correction we’d make, however. For Clinton, all those tax hikes she has planned for individuals, capital gains, and estates would also apply to pass through businesses.
So for an S corporation that right now pays 39.6 percent, plus the 3.8 percent ACA surtax, plus the reinstated Pease limitation on deductions, Clinton would add:
- The Buffett minimum tax of 30 percent;
- A 4-percent surtax on income above $5 million;
- A higher, 42.4 percent tax on capital gains held less than two years; and
- Higher estate tax rates and a lower exemption levels.
Clinton would raise taxes on pass through businesses when they earn income, when they are sold, and when their owners die. That strikes us as a pretty comprehensive assault on Main Street and far from “No Changes.”
COMPARISON OF PRESIDENTIAL CANDIDATE TAX PLANS
|Corporate Tax||Top rate of 15 percent, immediate expensing.||No changes to rate structures. Includes tax credits for businesses investing in community development, infrastructure and those that have employee profit-sharing.||20 percent tax rate, immediate expensing.|
|Passthrough Taxes||Top rate of 15 percent, though Trump has hinted at possible changes to come. Immediate expensing.||No changes.||25 percent tax rate, immediate expensing.|
|International Taxes||One-time tax of 10 percent on corporate cash held abroad when corporations repatriate the money.||Exit tax on unrepatriated earnings.||One-time tax on corporate assets held abroad, split at 8.75 percent on liquid holdings and 3.5 percent on illiquid holdings. Shift to territorial taxation of overseas income. Tax imported goods but not exports.|
|Individual Taxes||Three tax brackets of 12 percent, 25 percent and 33 percent, after initially proposing top individual rate of 25 percent. Eliminate carried interest deduction.||Buffett rule of 30 percent minimum tax on individuals with $1 million annual income. Also, 4 percent extra tax on individuals with annual income over $5 million. Carried interest taxed as ordinary income.||Three tax brackets of 12 percent, 25 percent and 33 percent.|
|Estate Tax||Eliminate.||Lower threshold to $3.5 million for individuals, $7 million for married couples, with no inflation adjustor. Raise tax rate to 45 percent. Set lifetime gift tax exemption at $1 million.||Eliminate.|
|Capital Gains||Capital gains and dividends taxed at maximum rate of 20 percent.||Assets held less than two years taxed at ordinary rates. Reduce rate about 4 percentage points for each additional year asset is held until reaching a rate of 23.8 percent on assets held more than six years.||Deduction of 50 percent on net capital gains, dividends and interest income, producing rates of 6 percent, 12.5 percent and 16.5 percent on that investment income, depending on individual’s tax bracket.|
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.
A compilation of the business tax related stories that caught our eye
Administration on Tax Reform
The President’s economic advisors have been unusually busy in recent weeks. National Economic Council Director Jeffrey Zients was firm in his conviction that tax reform could get done in the new Congress, citing the “remarkably overlapping” approaches of Obama’s plan and the Camp draft.
It is true there are some common themes in the Camp and Administration proposals, but also there are major – and fatal – differences as well, including:
- The Camp Draft is budget neutral while the Administration’s plan would raise revenue;
- The Camp Draft adopts a territorial tax system while the Administration appears to strengthen our world-wide system; and
- The Camp Draft is comprehensive while the Administration plan would reduce rates on corporations only – an approach rejected by Democrats and Republicans alike.
Add to those differences the fact that the Administration’s draft landed with a thud when it was released back in 2012 and has barely been discussed since, and the idea of House Republicans and the Obama Administration coming together on tax reform in the next Congress seems laughably remote.
Meanwhile, Council of Economic Advisers Chair Jason Furman spoke in New York the other week on tax reform, offering additional context to the Administration’s tax reform proposal and addressing some of the concerns that have been raised. We’ll have more to say about this later, but this paragraph caught our eye:
On the economic merits, it is important to remember that C corporation income is partially taxed at two levels while pass-through income is only taxed at one level. As a result, today C corporations face an effective marginal rate that is 6 percentage points higher than that on pass-through businesses. Although the President’s Framework would cut and simplify taxes for small business, including small pass-through entities, for larger businesses we should be moving towards greater parity—with the goal of equal effective rates on an integrated basis, a goal that would not be served by parallel reductions in individual and corporate tax rates.(Emphasis added)
That’s not exactly true. Recall that our study on effective tax rates released last year found that S corporations face the highest effective tax rate of any business type. Those estimates were based on real businesses and actual tax returns.
The numbers Jason is referring to are based on hypothetical future investments. They can be found in a three-year-old Treasury analysis under the heading of “Effective Marginal Tax Rates on New Investment.” Jack Mintz authored a comprehensive critique of these estimates for the Tax Foundation last February, some of it pretty damning.
For our purposes, we will just point out that Treasury’s analysis, correctly done, would be appropriate if you wanted to measure the tax burden on marginal investment decisions – should we build that new facility, should we buy that piece of equipment, should we use debt or equity? – but it doesn’t support the notion that C corporations today pay a higher effective rate than pass-through businesses. You need to estimate average effective tax rate to make that claim, which is what our study does.
Jason is right to point out that the double tax on corporations hurts US competitiveness. That’s the reason the pass-through business community advocates for its reduction as an essential goal of tax reform. There’s little point in reforming the tax code if the result doesn’t reduce the tax on investing in the United States, and the best path to achieving that is to tax business income once at reasonable rates and then leave it alone. That’s how S corporations are taxed today, and real reform would move C corporations in that direction.
Ryan on S Corporations
Contrast the Administration’s approach with that of Representative Paul Ryan (R-WI), a leading contender to take the gavel as the next Chairman of the Ways and Means Committee. He recently gave a speech at an event hosted by the Financial Services Roundtable in which he made clear the importance of improving the tax code for all businesses, including S corporations and other pass-through businesses. Here’s what he had to say:
“Tax reform is one of those things that we don’t know if we’re going to be there at the end of the day, because we want to make sure that, as we lower tax rates for corporations, we do the same for pass throughs.
You know, a lot of people in the financial services industry – banks – are subchapter S corporations.
Where Tim [Pawlenty] and I come from, “overseas” is Lake Superior, and Canadians are taxing all of their businesses at 15 percent. And our subchapter S corporations, which are 90 percent of Minnesota and Wisconsin businesses, are taxed at as high as a 44.6 percent effective rate.
So we have to bring all these tax rates down, but we have a problem with the Administration being willing to do that on the individual side of the tax code.”
We’ve been beating the “comprehensive tax reform” drum for three years now and it’s nice to see key policymakers embrace the message.
American Progress on S Corp Payroll Taxes
Meanwhile, Harry Stein of the Center for American Progress is out published a report with broad recommendations on how to best reform the tax code. Among its suggestions is one to close the “Edwards-Gingrich loophole,” an issue we’ve covered extensively in the past. On that subject, the S Corporation Association has developed the following position:
- We don’t support using the S corporation structure to avoid payroll taxes. We represent businesses that comply with the law, not sneak around it.
- It’s not a loophole, its cheating. This issue is often described as a loophole, but that’s not accurate. Underpaying yourself in order to avoid payroll taxes is already against the rules.
- The IRS has a long history of successfully going after taxpayers who abuse the S corporation structure. The current S corporation rules on this have been in place since 1958.
- Any “fix” needs to improve on the current rules. That means they need to be easier to enforce and they need to target wage and salary income only. Employment taxes should apply to wages only, not investment (including business) income.