The bill introduced by Representative Brady of Texas yesterday has the “short title” (Section 1), “Tax Cuts and Jobs Act”. It is the only thing about the bill that could be described as short.
At 429 pages – just over 100,000 words, it is a behemoth. Large though it is, it doesn’t rank in the top ten. The Affordable Health Care Act in 2009 came in at 314,900 words and the Dodd Frank Act 2010 came in at 357,142. If those seem hefty, they were only the tip of the iceberg. Dodd Frank spawned fifteen million words of regulations to implement the legislation. This is probably a good indication of what will be required to implement this testament to legislative bloviation.
Tax professionals are working diligently to make sense of this. Most legislators will likely vote without ever reading it. The conclusion in a recent article that this administration’s tax reform legislation would either
“fail because its inherent complexity will make it unfathomable to lawmakers, or pass in a form that creates more complexity than it solves”
is still a fair prediction. There are many – maybe over half the country - whose response to any tax legislation by this administration is shaped by the earnest wish to see nothing accomplished. The assumption is that this would have devastating legislative consequences in 2018.
While this author is no stranger to such sentiments, failure of the legislative branch to accomplish anything in this area would be a huge wasted opportunity. The goal of this article is not to provide a comprehensive review of the bill – this link is a good source for that – but rather to point out a few of the key areas that are worth focusing on and may not get a great deal of coverage in the mainstream media.
Some Trump Highlights
Section 103(b) is amended to deny tax exempt status to bonds issued to finance the construction of sports stadiums. Congratulations to Commissioner Goodell for mishandling the National Football League’s response to player protests during the playing of the National Anthem.
A new Section 4969 is added to impose an excise tax of 1.4% on the net investment income of private university endowments that exceed a ratio of $100,000 per student. The top three Ivy League schools, Harvard, Princeton and Yale have approximate ratios of $1.8MM, $3MM and $2MM respectively. A tax, perhaps, on the perceived liberal political correctness of elite academic institutions, but not one that is likely to lose many votes.
Like-kind exchanges – the ability to roll a capital gain from the sale of one asset into another of like kind, thus deferring tax until the sale of that second (or third, or fourth…) asset – is repealed for all assets other than real estate…
The deduction of interest expense for corporations and partnerships is limited to 30% of earnings before interest, taxes, depreciation and amortization for businesses with gross revenues exceeding $25MM. Any interest expense not eligible to be deducted may be carried forward for five years. This applies to all businesses except real estate…
Section 1221(b)(3), a neat piece of industry lobbying that gave creators of music the ability to achieve capital gains rather than ordinary income treatment on sale, is repealed. Blame Madonna, Cher and Bono.
Individuals – a New Hybrid System
As threatened in previous policy releases, this bill establishes a new taxation regime for pass-through vehicles – partnerships, limited liability companies and S corporations.
Currently, there are two basic sets of tax rules: one for individuals and one for corporations. The detailed analysis in an earlier article points out that, notwithstanding the pass-through tax regime contains some complexity, it does result in taxable income being passed through and taxed at the individual level.
The new bill proposes something different: a tax rate not to exceed 25% on something called “qualified business income”. Certain professions (generally those whose essential quality is professional advice based on reputation) and activities (hedge funds, for example) will not be entitled to benefit from this reduced category of individual taxation.
Although the number of individual tax bands has been reduced from seven to four, the introduction of this new filter will more than make up for the band simplification. Much ink and many chargeable hours will be spent on defining and structuring around “qualified business income” and in choosing the different options for active and passive activities within this new category.
Domestic and international corporate taxation is the heart and soul of this legislative sasquatch. It will fill the coffers of tax advisors for years to come.
Domestically, the proposals are relatively straightforward. The corporate rate is permanently reduced from 35% to 20%. Corporate (and individual) alternative minimum tax (AMT) is repealed. No-one will mourn the passing of AMT. It requires a separate set of tax calculations to be kept. AMT is well past its sell-by date. Whether or not the reduction in the corporate rate does anything more than bring the effective rate closer to the stated rate remains to be seen.
Net operating losses (NOLs) usage is limited to 90% of taxable income. Their value, because the corporate tax rate is to be reduced by 15%, will be reduced by 43%. NOLs created after the effective date of the bill (generally tax years beginning 1/1/2018) may be carried forward indefinitely and, in order to preserve their reduced value, they will be inflated by an interest factor. NOL carrybacks will be eliminated.
Capital acquisition of depreciable property will receive a boost from the ability to expense 100% of certain property – not including real estate – immediately on acquisition. The assumption is that this will increase spending on capital assets. It may simply accelerate it.
The real employment guarantee for tax professionals lies in the international section. The challenge of this bill is to find ways to pay for the tax cuts that exist in its title. One rich source of potential tax savings is to force the repatriation of the $2.6trn of cash sitting overseas in the low-tax foreign subsidiaries of US corporations. The bill proposes a tax of 12% on this overseas cash and 5% on non-cash, illiquid assets. While the tax will not force a repatriation, there is no reason not to bring it back at that point because the primary reason for holding the assets overseas is to defer US tax.
After the forced repatriation – called endearingly a “transition measure” – international taxation of US multi-nationals will shift to a territorial system where dividends from foreign subsidiaries owned at least 10% by US shareholders may be paid tax free. The following extract from the amended Section 965 is an illustration of how richly rewarding for advisors the interpretation of tax legislation can be:
‘‘(A) IN GENERAL.—In the case of any affiliated group which includes at least one E&P net surplus shareholder and one E&P net deficit shareholder, the amount which would (but for this paragraph) be taken into account under section 951(a)(1) by reason of subsection (a) by each such E&P net surplus shareholder shall be reduced (but not below zero) by such shareholder’s applicable share of the affiliated group’s aggregate unused E&P deficit.
In order to avoid the perceived potential for abuse of the participation exemption, a new minimum tax (thought we had seen the last of minimum tax…) will be imposed on foreign subsidiaries considered to generate “high returns” a new concept designed to capture highly profitable foreign operations. Profitable is defined relative to the subsidiaries capital base (complicated definition needing some interpretation).
The co-ordination of these provisions with the system of foreign tax credits and the allocation of interest expense deductions (already constrained as described above) provides additional entertainment.
Other Revenue Raisers
One of the loopholes ripe for closing has been the ability of foreign-owned US-based insurance companies – Chubb, owned by ACE, is a good example – to write insurance in the US and then remove that premium income from the US tax base by reinsuring the risk with its foreign parent.
Since the majority of profit in insurance of this kind is in the reinvestment of the premiums in advance of paying the claims (Warren Buffet’s so-called “float”), the competitive advantage enjoyed by these foreign-owned insurance groups has long been attacked by domestic insurers. This bill would impose a 20% excise tax on such reinsurance payments. The complaining from abroad is intense but is unlikely to generate much sympathy in DC.
Whether any of this will come to pass is hard to gauge. The proposed changes to property and local state tax deductions are not popular in the states – New York and California – where they are intended to raise most revenue. The changes to the mortgage interest deduction are unpopular among those involved in the real estate business. Again, however, this is probably a predominantly bi-coastal problem. How this plays out will depend on how it is marketed to and perceived by those representatives and senators (Chuck Schumer) whose constituents are most affected.
The corporate provisions, complex though they are, probably deserve to pass. Bringing home the $2.6trn and preventing its regeneration has been discussed for too long. The time has come.
Tax reform is painful but overdue. This bill will look different by the time it has been beaten up in DC. It has probably come too far to fail. If the Republicans can’t pass tax reform, they deserve to be punished.
Neil is the CEO of Sevara Capital Advisors. He is passionate about solving tax, accounting and regulatory problems for institutions that have invested billions of dollars of capital in multiple jurisdictions. His company provides solutions for banks, insurance companies and hedge funds to tackle their problems related to tax returns, financial statements, accounting and internal finance matters. Neil holds a master’s degree in Law from the University of Cambridge.