S-Corp Testifies

S-Corp President Brian Reardon testified yesterday before the Senate Small Business Committee in a hearing entitled “Tax Reform: Removing Barriers to Small Business Growth.”  As Inside Sources reported:

The hearing primarily focused on ensuring small businesses are considered in the current push to lower corporate tax rates. The Small Business Administration found that small businesses make up a sizable portion of the national economy at 49.2 percent of private-sector employment.

“As we all know, our tax code is in need of reform,” New Hampshire Democratic Sen. Jeanne Shaheen, the ranking member of the committee, said at the start of the hearing. “As Congress considers tax reforms, we need to make sure small businesses are at the table.”

The S-Corp testimony focused on themes familiar to S-Corp readers, including the fact that pass through businesses like S corporations employ the majority of private sector workers, so that any effort to reform the tax code should start with those businesses in mind.

Testifying

You can watch the full hearing here

In addition to tax reform, the testimony touches on other important consistent S-Corp priorities like the S Corporation Modernization Act and the withdrawal of Treasury’s proposed 2704 regulations.  Asked about how we ended up with one of the worst tax codes in the world, Brian made the case for action:

Back in 1986, when we last reformed the code, we brought the corporate rate down from the high 40s down to 35 percent. At the time that was one of the lower tax rates in the developed world. I think the average for the OECD at that time was about 44 percent. Today the average for the OECD is down in the low 20s while we’re still at 35 percent. 

So we’ve been sitting still, both on rates and also this idea of a worldwide tax system. We tax our businesses on their earnings wherever they are made. Most countries in the last 10-15 years have moved to a territorial system. England did. You know, 10 years ago, England (UK) had the same problems we did — they had inversions, companies were moving overseas, they were losing to other countries…they completely revamped their rates, they cut the rates down, they moved to territorial, and now companies are moving to the UK not away from the UK.

You can read Brian’s full written remarks here.

Pass Thru Rates & Enforcement

As Congress returns to tackle tax reform, one area of consensus continues to be ensuring that Main Street is treated fairly by establishing a new, low top rate on pass through businesses.  But separating business and individual rates brings its own challenges.  As BNA reported last week:

Economists and tax accountants note that taxing pass through income at rates distinct from the individual income scale would open up incentives for taxpayers to route their income through the lowest rate path. Treasury Secretary Steven Mnuchin recently said tax reform legislation would include rules to prevent people from gaming the tax rate meant to spur business investment.  

From S-Corp’s perspective, creating a unique rate for pass through businesses requires two essential steps:

  • First, you have to define the new pass through tax base correctly.
  • Second, you have to include enforcement rules to reduce or eliminate the opportunity for individuals to recharacterize their wage and salary income as business profits in order to access the lower tax rate.

The first of these challenges is fairly straightforward.  A rate applying to pass through businesses should mirror the tax base for corporations and be broadly defined, embracing all the active business income earned by businesses organized as pass throughs.  H.R. 116 from Representative Vern Buchanan (R-FL) is a nice example of how this should be done.

The second challenge is more problematic and has been with us since Congress eliminated the wage cap on Medicare taxes back in 1993.   Exactly how do you distinguish returns from an owner’s personal labor from returns on his/her investments in capital and employees?  It’s not easy and, more importantly, getting it wrong has the potential to completely undo the benefits of tax reform to Main Street businesses.

By way of example, a provision in the Camp tax reform draft would have established a strict, 70/30 ratio of wages to business profits for all pass through businesses.  S-Corp and the rest of the Main Street business community pushed back hard, arguing that a fixed ratio recharacterizing business profits as wages was unfair and would hurt pass through businesses with lots of employees and capital investments.

This same argument applies if the Committee would add the 70/30 rule to the House Blueprint.  Ostensibly, the Blueprint has a top rate structure of 33 percent for wages, 25 percent for pass through businesses, and 20 percent for C corporations.  But applying the 70/30 test broadly to active owners means in reality the top rate for S corps and partnerships would be closer to 31 percent, 11 percentage points higher than the C corp rate.  We’re not perfectionists when it comes to rate parity, but having an effective rate more than 50 percent higher than competing C corps isn’t rate parity in anybody’s book.

Moreover, the strict 70/30 rule has the potential to turn the Blueprint from a tax cut to a tax hike for many pass through businesses.  To understand the threat, look at how coupling the Blueprint with the 70/30 rule would affect this particular S corporation manufacturer.

Tax Reform Example

As you can see, not only does the 70/30 rule result in this manufacturer paying significantly more than a similar C corporation, it means the Blueprint could be an actual tax hike on this manufacturing company.  Under current law, they pay $1.16 million in taxes.  Under the Blueprint, they would pay $60,000 more.  The Blueprint’s lower rate is fully offset by the loss of state and local tax deductions, Section 199, and the ability to write-off interest expenses.

You can see a full discussion of these issues in this presentation, but the simple fact is that if Congress is going to establish a separate rate for pass through businesses, it needs to get the enforcement challenge right.  Getting it wrong means completely undoing the benefit of lower rates and the other pro-business provisions in the Blueprint.  More on this to come.

 

2704 Study Highlights Threat from Proposed Rule

This week, the S Corporation Association along with several other trade groups released a new study highlighting the threat the pending Section 2704 rules pose to family businesses and their employees.

Authored by former Clinton economist Dr. Robert Shapiro and entitled “An Economic Analysis of Proposals to Limit the Recognition of Valuation Discounts for Transfers of Interests in Large Family Businesses,” the study finds that family-controlled businesses are a significant source of earnings and employment in the US economy.  According to the study:

  • Large family businesses account for 31.8 percent of U.S. business revenues, 30.7 percent of U.S. private employment, and 31.1 percent of U.S. payrolls.
  • Large family businesses have less employee turnover, leaner cost structures, and smaller debt burdens; they also invest at higher rates and over longer time horizons than comparable non-family businesses.

Meanwhile, the pending section 2704 rules would hurt the ability of these family businesses to grow and create jobs.  The study finds that:

  • Limiting valuation discounts under the Proposed Rule would increase estate taxes for large family businesses by $633.3 billion, in present discounted dollars, over the next 46 years.
  • To prepare for this additional burden, these businesses would divert resources, equivalent to the additional tax they will owe, from their normal business investments.
  • The projected reductions in their investments in equipment and machinery would reduce GDP growth, in 2016 dollars, by $2,476 billion from 2016 to 2062.
  • This slower growth also would reduce job creation over the next decade by 105,990 jobs.

The study was sponsored by the S Corporation Association and several other groups, including the Real Estate Roundtable, the Associated Builders and Contractors, and the Independent Community Bankers of America, with a goal of highlighting the threat these pending rules pose to family businesses and their employees.

With the Trump Administration actively seeking ideas on how Treasury can reduce red tape and encourage investment and growth, withdrawing these 2704 rules should be job one.  A record number of opponents weighed in during the official comment period last fall, yet the rules continue to perplex family businesses and their advisors as they make succession plans.  This one is easy, and S-Corp will be working on it until it’s done.

Ways & Means Takes on Tax Reform

The House Ways and Means Committee began its focus on tax reform yesterday with a hearing on economic growth.  The hearing, entitled “How Tax Reform Will Grow Our Economy and Create Jobs” featured four company representatives and one hedge fund manager invited, oddly enough, by the Minority.

One of the company witnesses, Zach Mottl, is the Chief Alignment Officer for Atlas Tool Works, a multi-generation family business located outside of Chicago.  Operating in an industry with large, multinational competitors, Zach made clear the current rate structure is tilted against smaller companies like theirs that lack the international presence to shift around income:

In addition, oftentimes, tax issues affect manufacturers of different sizes in different ways, usually smaller manufacturers, like the TMA member companies, are the only companies paying a higher tax rate because we do not have the staff or the resources to develop a comprehensive global tax avoidance plan like our larger peers who actually pay far less in taxes that we do. 

Meanwhile, Representative Vern Buchanan (R-FL), a friend of the Main Street business community, had this to say:

But I want to touch on pass-through entities and make sure they don’t get lost in the mix. I got a bill, I’d like to see close to parity. When you look at corporate rates at 35% they’re not competitive, but for pass-throughs it’s as high as 44%. If you add state income tax in states like California, they’re 12-13%, it could be as high as 57%, makes absolutely no sense. So, I guess I’d like to ask some of the panelists, just your thoughts on lowering those rates, where they’re more competitive, getting it down to somewhat near the corporate rate, I don’t necessarily agree with 15%, but the difference that would make in terms of growth, in terms of jobs, and also in terms of raising wages.

As you’ll recall, Rep. Buchanan has been active on this issue for some time, advocating for a level playing field and sponsoring the Main Street Fairness Act in the last two congresses.  Here’s what we wrote when his bill was first introduced last Congress:

And just this week, Congressman Vern Buchanan (R-FL) introduced legislation on the issue of rate parity.  Entitled the Main Street Fairness Act, the bill would cap the top pass through business tax rate at the top corporate rate.  Under the Buchanan bill, the same 35 percent top rate that applies to corporate income would also apply to successful pass through businesses.  If Congress reduces the corporate rate next year, pass through businesses would get the new lower rate too.

Groups weighing in on the Buchanan bill include the National Association of Manufacturers, the National Retail Federation, and the Associated Builders and Contractors.  You can read more about the Buchanan bill here.  You can read the S Corporation Association letter on the bill here.

The good news is that the House Blueprint specifically referenced this legislation as a possible means of defining pass through business income and ensuring fairness for Main Street businesses.  As the debate proceeds, we expect lots more attention paid to the challenge of how to treat pass through businesses.  As the Buchanan bill demonstrates, there are smart folks on the Hill working to make sure we get it right.

 

Mnuchin on Pass Throughs

The same day that the House kicked off its tax reform efforts, Treasury Secretary Steven Mnuchin was talking taxes over on the Senate side.  Testifying before the Senate Banking Committee, Mnuchin was asked about their tax reform plan and the challenge of enforcing their new, 15-percent rate on businesses.

Treasury Secretary Steven Mnuchin defended the Trump administration’s push for a 15 percent pass-through tax rate during an appearance today before the Senate Banking Committee.

“We will put procedures in place … to prevent people who should be paying higher taxes from using pass-throughs to arbitrage the system,” Mnuchin said in response to questioning from Sen. Elizabeth Warren (D-Mass.). “I can assure you … we are not going to allow all pass-throughs to get that rate.”

Mnuchin added that the administration planned to put in place a system to ensure only “small and medium-sized businesses” could use the proposed pass-through rate to ensure wealthy individuals would not simply form their own companies to avoid higher personal income tax rates.

The Treasury secretary also defended the tax outline he and National Economic Council Director Gary Cohn unveiled weeks ago from charges that it would heap trillions more dollars onto the national debt.

“We would never propose a plan that we thought would cost $5 trillion,” Mnuchin said when Sen. Jon Tester (D-Mont.) asked about the cost of tax cuts Trump proposed. “Only parts of the plan were released so I don’t know how it could be responsibly scored.”

“I am concerned as to whether some of the models will attribute enough growth in dynamic scoring,” added Mnuchin, rebutting arguments that growth may not pay for the cost of Trump’s proposals, “but when we present the details we will present how we think it should be paid for.”

There are many concerning aspects of this response, but the most obvious fallacy is the notion that tax avoidance only happens with pass through businesses.  What about the 15-percent rate for corporations?  What’s to stop wealthy individuals from using the C corp structure as a tax shelter?  That’s what they did pre-1986, and that’s what they would do here too (here and here).

For six years, the pass through community has coalesced around a simple proposition that the best way to ensure economic growth and the integrity of the tax code is to tax all forms of income – individual, pass through, and corporate – at similarly low top rates, while eliminating the double tax on corporations.

As the question and response above makes clear, the further you get away from this approach, the more difficult the challenges become.  Secretary Mnuchin’s vision resembles the tax code pre-1986, when all US companies of any size were organized as C corporations and tax avoidance was rampant.

It’s a result we are eager to avoid.

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