In one of the most significant tax-oriented milestones of his presidency to date, President Biden last Friday released his full FY22 budget, and the Treasury Department released its Greenbook explanation of Biden’s tax proposals, inclusive of proposed (and one retroactive) effective dates. Collectively, these documents provide the most detailed description to date of the Biden Administration’s tax proposals that were included in the Made in America Plan and the American Jobs Plan, and set the course for Congressional action over the next several months.
In general, most of the proposals in the Greenbook follow through on the prior plans of the Administration to request almost $4 trillion in new spending, partially offset by requested increases in taxes and additional IRS enforcement.
The President’s Budget is not a law introduced in Congress. Rather, it is an overall funding request and recommendation on spending for Federal fiscal policy. Likewise, the accompanying Treasury Greenbook is a detailed description of the President’s tax proposals contained within the budget that Congress can choose to act upon in some fashion. Proposals taken up for consideration by Congress will likely be modified or revised to increase the likelihood of passage, but for Congressional Democrats, the overall aim is to remain closely aligned to the policies and priorities of the Biden Administration.
This Alert provides a discussion of the various tax proposals, as well as our observations and insights, followed by a brief description of what lies ahead.
Key highlights of the Budget and Greenbook include:
- Increase in corporate tax rate to 28%. Effective for tax years beginning after Dec. 31, 2021. For a fiscal year taxpayer the rate would be equal to 21% plus 7% multiplied by the portion of the tax year that occurs in 2022.
- Significant revisions to international taxation including the elimination of qualified business asset investment (QBAI), a reduction to the global minimum tax inclusion deduction, moving to a country-by-country calculation of GILTI and foreign tax credits, and a repeal of high tax exemption to subpart F income and GILTI. Also a repeal of the deduction for foreign-derived intangible income (FDII). Effective for tax years beginning after Dec. 31, 2021.
- Replacing the base erosion anti-abuse tax (BEAT) with the stopping harmful inversions and ending low-tax developments (SHIELD). This proposal coincides with the Pillar Two Organization for Economic Co-operation and Development (OECD) blueprint. Effective for tax years beginning after Dec. 31, 2022.
- Imposing a 15% book minimum tax on book earnings of large corporations (worldwide book income in excess of $2 billion). Effective for tax years beginning after Dec. 31, 2021.
- Increasing the top marginal income tax rate for high earners to 39.6%. Effective for tax years beginning after Dec. 31, 2021.
- Reform the taxation of capital income through taxing long-term capital gains and qualified dividends at ordinary rates for high-income earners. Effective after the date of announcement of American Families Plan (April 28, 2021).
- Reform the taxation of capital income by treating transfers of appreciated property by gift or on death as realization events. Effective for gains on property transferred by gift, and on property owned at death by decedents dying, after Dec. 31, 2021, and on certain property owned by trusts, partnerships, and other non-corporate entities on Jan. 1, 2022.
- Tax carried interest as ordinary income. Effective for tax years beginning after Dec. 31, 2021.
- Improve taxpayer compliance and administration by increasing IRS funding and enforcement.
American Jobs Plan
As expected, the Greenbook called for an increase to the income tax rate for C corporations from 21% to 28%. This increase would be effective for tax years beginning after Dec. 31, 2021. For corporations that have tax years beginning after Jan. 1, 2021 and before Jan. 1, 2022, the tax rate would be equal to 21% plus 7% times the portion of the tax year that occurs in 2022. Given that some recent comments indicated a lesser prospective rate increase, the Administration may ultimately agree to a rate less than 28%.
This proposal to increase corporate tax rates would put the effective U.S. corporate tax rate well above the OECD member states’ average statutory corporate tax rate of 23.51%, 26.30% when weighted by GDP. In any event, raising the corporate income tax rate may put the U.S. at a competitive disadvantage when compared against other OECD member states.
The proposed corporate tax reform also fails to account for taxpayers using pass-through structures, who may have otherwise used the corporate form, if not for the increased rates. Further, the proposal makes no mention of adjusting the current section 199A which arguably served to maintain tax parity for pass-through businesses and corporations.
This increase in tax rate would come at a time when tax rules present many corporate taxpayers with reduction in their tax deductions for interest expense and net operating loss carryforwards.
Global minimum tax - minimum tax of 15% on book earnings of large corporations
The Administration’s proposal imposes a new 15% minimum tax based upon the worldwide pre-tax book income of certain large corporations. This minimum tax applies only to corporations that have worldwide book income in excess of $2 billion and apparently targets disparities between financial statement income and taxable income. The Administration estimates that this $2 billion threshold would mean only 120 taxpayers may be subject to the tax based on current figures.
Specifically, taxpayers would calculate their book tentative minimum tax (BTMT), which is equal to 15% of worldwide pre-tax book income, less general business credits. The pre-tax book income for a given year would be reduced by any book net operating loss deductions. A taxpayer’s minimum tax would equal the excess (if any) of its BTMT over its regular tax.
If taxpayers are subject to the minimum tax, they would be permitted to carry forward a corresponding book tax credit against regular tax in future years. However, this book tax credit could only reduce tax liability to the extent that regular tax exceeds BTMT for that year.
This proposal would be effective to relevant taxpayers for taxable years beginning after Dec. 31, 2021.
Restrict interest deductions for certain disproportionate U.S. borrowings
Section 163(j), overhauled in the TCJA, generally limits tax deductions for business interest expense to the sum of (i) business interest income, (ii) 30% of adjusted taxable income (not less than zero) and (iii) floor plan financing interest. However, section 163(j) does not consider the leverage of a multinational group’s U.S. operations relative to the leverage of the group’s worldwide operations. The Administration asserts multinational groups are able to reduce their U.S. tax on income earned from U.S. operations by over-leveraging their U.S. operations relative to those located in lower-tax jurisdictions.
Accordingly, under the Administration’s proposal, a financial reporting group member’s deduction for interest expense generally would be limited if (i) the member has U.S. net interest expense and (ii) the member’s net interest expense for financial reporting purposes exceeds the member’s proportionate share of the financial reporting group’s net interest expense, determined based on the member’s proportionate share of the group’s earnings. When a financial reporting group member has excess financial statement net interest expense, a deduction will be disallowed for the member’s excess net interest expense for U.S. tax purposes. Alternatively, the interest deduction would be limited to the member’s interest income plus 10% of the member’s adjusted taxable income. The amount of interest expense disallowed under this provision and section 163(j) would be determined based on whichever of the two provisions imposes the lower limitation. Regardless of the approach taken, any disallowed interest expense could be carried forward indefinitely.
The proposal would not apply to (I) financial services entities (generally banks) and (ii) financial reporting groups that would otherwise report less than $5 million of net interest expense, in the aggregate, on one or more U.S. tax returns for a taxable year. The proposal would be effective for taxable years beginning after Dec. 31, 2021.
For multinational companies, the computations necessary for proportional-to-earnings interest expense limitation generally would make estimating or predicting allowable interest deductions for more difficult. The more stringent section 163(j) limitation may also render partnership preferred equity financing more tax-advantageous.
Modify the GILTI provisions
Under the Global Intangible Low-Taxed Income (GILTI) provisions, a U.S. shareholder of a controlled foreign corporation (CFC) is subject to current U.S. tax on its share of the CFC’s GILTI. GILTI is generally defined as the excess of a U.S. shareholder’s aggregated “net tested income” from CFCs less a 10% routine return on certain foreign tangible assets (referred to as QBAI). This aggregated approach allows loss entities to offset other entities with tested income within the group.
In addition, section 250 allows a U.S. corporate shareholder to deduct 50% of its GILTI, reducing the effective rate on GILTI income to 10.5% instead of the normal 21%. A U.S. corporate shareholder may also claim an indirect foreign tax credit (FTC) for 80% of the foreign tax paid by the shareholder’s CFCs that is allocable to GILTI income. Further, under Treasury regulations released in July 2020, taxpayers may exclude certain high-taxed income of a CFC from their GILTI computation on an elective basis.
The Greenbook would eliminate the 10% deduction for QBAI and increase the tax rate on GILTI to 21% by reducing the section 250 deduction to 25% (assuming a 28% corporate income tax rate). Furthermore, a U.S. shareholder’s GILTI inclusion and foreign tax credit limitation would be applied on a country-by-country basis, thus reducing the ability to blend tested income with tested losses (unless both entities are in the same country) and precluding excess FTCs from entities in high-taxed countries from being credited against GILTI inclusions from low-tax countries. Finally, the high-tax exclusion for GILTI (and Subpart F income) would be repealed.
The GILTI modifications would be effective for tax years beginning after Dec. 31, 2021.
Repeal the FDII provisions
The Foreign Derived Intangible Income (FDII) provisions allows U.S. corporations to take a 37.5% deduction, provided they have sufficient total taxable income to absorb that deduction, on certain export sales and services income—reducing the effective tax rate on FDII income to 13.125%—through the end of 2025. After 2025, the FDII deduction is supposed to shrink to 21.875% increasing the effective tax rate on FDII income to 16.406%.
The Green Book would repeal the FDII deduction and (without providing details) would use the savings to enhance provisions incentivizing research and development (R&D).
The FDII deduction repeal would apply to tax years beginning after Dec. 31, 2021.
Replace BEAT with SHIELD
The Base Erosion and Anti-Abuse Tax (BEAT) is a 10% minimum tax intended to prevent domestic and foreign corporations operating in the United States from shifting profits out of the United States. The BEAT targets large corporations with gross receipts of $500 million or more and with ‘base erosion’ payments—payments made to related foreign parties—that exceed 3% (2% for certain financial firms) of total deductions taken by a corporation.
The Greenbook would repeal the BEAT and replace it with the Stopping Harmful Inversions and Ending Low-tax Developments (SHIELD) regime. The SHIELD regime would disallow deductions to a domestic corporation or branch on gross payments made to a member in the same financial reporting group whose income is subject to a low effective tax rate.
- The SHIELD would apply to financial reporting groups with greater than $500 million in global annual revenues (as determined based on the group’s consolidated financial statement).
- A ‘financial reporting group’ is any group of business entities that prepares consolidated financial statements and that includes at least one domestic corporation, domestic partnership or foreign entity with a U.S. trade or business.
- A ‘low-taxed member’ would be any financial reporting group member whose income is subject to (or deemed subject to) an effective tax rate that is below a designated minimum tax rate.
- The ‘minimum tax rate’ would be that tax rate agreed to under the Organization for Economic Co-operation and Development (OECD) Pillar Two agreement or, if not reached prior to the effective date of SHIELD, the new GILTI rate of 21%.
Replacing BEAT with SHIELD would be effective for tax years beginning after Dec. 31, 2022.
Tighten the anti-inversion rules
An inversion transaction generally involves replacing a corporate group with a U.S. parent with a foreign corporate parent. Under current law, if the shareholders of the U.S. parent receive 80% or more of the new foreign parent’s stock and other requirements are met, the inversion is disregarded entirely and the new foreign parent will be treated as a U.S. corporation for U.S. tax purposes. If at least 60%, but less than 80%, of the new foreign parent’s stock is acquired by the shareholders of the U.S. parent, the new foreign parent is not taxed like a domestic corporation, but any U.S. toll taxes (taxes on gains) that apply to transfers of assets to the new entity are not permitted to be offset by foreign tax credits or net operating losses.
The Greenbook would replace the 80% test with a greater than 50% test and eliminate the 60% test. The Green Book also provides that, regardless of the level of shareholder continuity, an inversion transaction occurs if:
- Immediately prior to the inversion transaction, the fair market value of the domestic corporation is greater than the fair market value of the foreign corporation,
- The expanded affiliated group is primarily managed and controlled in the United States after the acquisition, and
- The expanded affiliated group does not conduct substantial business activities in the country in which the foreign corporation is created or organized.
The new anti-inversion provisions would be effective for tax years beginning after Dec. 31, 2022.
Other international tax proposals
- Apply the country-by-country approach to calculating the FTC limitation to branch income.
- Limit FTCs on sales of hybrid entities.
- Repeal the exemption from GILTI for foreign oil and gas extraction income.
- Introduce a 15% minimum tax on worldwide book income for corporations that have worldwide book income in excess of $2 billion.
- Create a new business credit equal to 10% of eligible expenses paid or incurred in connection with onshoring a U.S. trade or business.
In general, these proposals are in line with what the Administration has signaled: Separate county calculation of GILTI and FTC on a separate country/separate basket basis, along with the repeal of high tax exemption for subpart F income and GILTI. Uncertainty abounds in how to reconcile some of the OECD Pillar Two provisions with U.S. tax law. There looks to be complexity with a potential for a risk of double taxation.
The Administration is proposing a full repeal of the FDII rules in exchange for R&D and the scoring is dollar for dollar repurposing of FDII costs. Unclear as to whether this is a full offset to repeal the TCJA deferred effective date of requiring amortization of R&D expenses, or another potential R&D incentive.
With respect to BEAT and SHIELD, the proposal applies when a US payor makes a deductible payment to related party in a ‘low tax’ jurisdiction. That is, a place where the rate is below the Pillar Two rate, should a minimum rate be agreed upon. The rule that indicates a taxpayer is deemed to make a payment to a foreign related party in a low tax jurisdiction even if the taxpayer pays a related party that is in a high tax jurisdiction. This could be interpreted to require that every payment made to a foreign related party will be deemed to be paid in part to members in a low tax jurisdiction in part under a formula. This rule could add a new dimension to planning and the Administration anticipates revenue of $390 billion from this provision.
The American Jobs Plan / Made in America tax plan proposes new or expanded housing and infrastructure credits, as well as providing for federally subsidized state and local bonds for schools and transportation. These proposals create an additional type of a housing credit dollar amount to expand the low-income housing tax credit, create a new tax credit – the Neighborhood Homes Investment Credit (NHIC), and make permanent the new markets tax credit. In addition, the proposal creates qualified School Infrastructure Bonds and private activity bonds for transportation infrastructure.
The Administration proposes to do away with tax preference items for taxpayers in the oil, gas and coal industries. Under the proposal, the following items are targeted for repeal:
- Enhanced oil recovery credit for eligible costs attributable to a qualified enhanced oil recovery project (the credit is completely phased out in 2020)
- The credit for oil and gas produced from marginal wells (the credit for oil was completely phased out in 2019)
- The expensing of intangible drilling costs
- The deduction for costs paid or incurred for any tertiary injectant used as part of a tertiary recovery method
- The exception to passive loss limitations provided to working interests in oil and natural gas properties
- The use of percentage depletion with respect to oil and gas wells;
- Two-year amortization of independent producers’ geological and geophysical expenditures, instead allowing amortization over the seven-year period used by integrated oil and gas producers
- Expensing of exploration and development costs
- Percentage depletion for hard mineral fossil fuels
- Capital gains treatment for royalties
- The exemption from the corporate income tax for publicly traded partnerships with qualifying income and gains from activities relating to fossil fuels
- The Oil Spill Liability Trust Fund excise tax exemption for crude oil derived from bitumen and kerogen-rich rock, and
- Accelerated amortization for air pollution control facilities
Unless otherwise specified, the proposal provisions would be effective for tax years beginning after Dec. 31, 2021. For royalties, the provisions would be effective for amounts realized in tax years beginning after Dec. 31, 2021. Finally, the repeal of the exemption from corporate income tax for publicly traded partnerships with qualifying income and gains from activities relating to fossil fuels would be effective for tax years beginning after Dec. 31, 2026.
In place of these fossil fuel items, the Administration proposes several renewable and alternative energy incentives, including:
- Extend the full production tax credit for qualified electricity production facilities commencing construction after Dec. 31, 2021 and before Jan. 1, 2027, with a phasedown of the credit over five years, starting in 2027. Taxpayers would have the option to elect a cash payment in lieu of a general business credit.
- Extend credits for investments in solar and geothermal electric energy property, qualified fuel cell power plants, geothermal heat pumps, small wind property, offshore wind property, waste energy recover property and combine heat and power property. Additional credits are provided for stand-alone energy storage technology. Taxpayers would have the option to elect a cash payment in lieu of a general business credit.
- Extend the Residential Energy Efficiency Credit and expand it to include qualified battery storage technology. Starting in 2022, the previously reduced credit would return to the full 30% rate for property placed in service after Dec. 31, 2021 and before Jan. 1, 2027. The credit would then be phased out over the next five years. Taxpayers would have the option to elect a cash payment in lieu of a general business credit.
- Provide a tax credit for electricity transmission investment for property placed in service after Dec. 31, 2021 and before Jan. 1, 2032.
- Provide allocated credit for electricity generation from existing nuclear power facilities.
- Establish new tax credits for qualifying advanced energy manufacturing.
- Establish tax credits for heavy-and medium-duty zero emissions vehicles. Taxpayers would have the option to elect a cash payment in lieu of a general business credit.
- Provide tax incentives for sustainable aviation fuel.
- Provide a production tax credit for low-carbon hydrogen.
- Extend and enhance energy efficiency deductions and tax credits for investments in energy efficiency property and improvements.
- Provide a disaster mitigation tax credit. Effective for tax years beginning after the date of enactment.
- Expanding and enhancing the carbon oxide sequestration credit. Under the expansion qualified facilities must begin construction by Jan. 1, 2031. Taxpayers would have the option to elect a cash payment in lieu of the carbon sequestration credit.
- Extending and enhancing the electric vehicle charging station credit.
- Reinstating superfund excise taxes and modifying oil spill liability trust fund financing.
Unless otherwise noted, the effective date for these proposals would be after Dec. 31, 2021.
Many of these credits add the taxpayer’s ability to elect cash payments in lieu of the section 38 general business credit. This addition could result in fewer investment strategies that are currently used to modify the credit and increase business’s ability to claim the credit on their own.
American Families Plan
The Greenbook proposes an increase in the highest tax rate on ordinary income back to levels that existed prior to the enactment of the Tax Cuts and Jobs Act in 2017. This would bring the highest ordinary income from rate from 37% to 39.6%. For married individuals filing a joint return this top rate would apply to taxable income over $509,300 ($452,700 for unmarried individuals, $481,000 for head of household, $254,650 for married individuals filing separately). This proposal would be effective for taxable years beginning after Dec. 31, 2021.
Reforming the taxation of capital income
The Greenbook includes a dramatic change in the taxation of capital gains and qualified dividends effective as of the date of introduction, presumed to be April 28, 2021 (the Administration’s introduction of the American Families Plan). This proposal would increase the current 20% rate on capital gain income to the highest ordinary income tax rate (currently 37%, 40.8% including the net investment income tax) for individuals with more than $1 million ($500,000 for married filing separately) of adjusted gross income.
Taxation of gains from transfers as a gift or at death
In addition to increasing the tax rate on long-term capital gains and qualified dividends, the proposal would also tax unrealized appreciation in property transferred by gift or at death. These taxes would only apply to any gains in excess of a $1 million lifetime exclusion from recognition provision. This exemption would be portable between spouses allowing for a total of $2 million of excluded gains for married couples. Additional exclusions are available for transfers between spouses, to charities and the existing exclusions for gain on a personal residence ($250,000 per taxpayer) as well as certain small business stock and tangible personal property such as household furnishings and personal effects. A transfer would be defined under the gift and estate provisions.
To value assets subject to this tax, transfers of partial interests in property will be valued as a fraction of the fair market value of the whole essentially eliminating discounts for minority interests. The proposal calls for methodologies of valuation similar to methodologies used for gift or estate tax purposes.
The proposal includes an election to defer payment of tax on appreciation for certain family-owned and operated businesses until the business is sold or it ceases to be family-owned and operated. For other transfers at death a 15-year fixed-rate payment plan would be provided except for transfers of liquid assets (such as publicly traded securities) or where the election to defer payment for a family-owned and operated businesses is made.
Trusts, partnerships and other non-corporate entities
The Greenbook includes provisions dealing with trusts, partnerships and other non-corporate entities. These provisions provide that in kind transfers into and distributions from these non-corporate entities will be subject to taxation. The proposal also calls for the taxation of the unrealized appreciation in assets held in non-corporate entities without a taxation event within 90 years. For this purpose, testing will begin on Jan. 1, 1940. This means that the first tax collected under this provision would be Dec. 31, 2030.
In general, the effective dates of these proposals would be tax years beginning after Dec. 31, 2021 for gains on property transferred by gift, and on property owned at death by decedents. For certain property owned by trusts, partnerships and other non-corporate entities, the effective date is Jan. 1, 2022.
The Biden Administration has been unwavering in its belief that capital gains should be taxed at ordinary income rates for those with incomes over $1 million and the elimination of a step-up in basis. The Greenbook provides more details about how the Administration would implement these plans, but like any proposal, there are some unanswered questions.
For example, an election to defer the taxation of gains from the transfer of family-owned and operated businesses until either a sale of the business or a time where it ceases to be family-owned and operated. The proposal reads as a deferral of payment and not a deferral of taxation. In a case when the first generation transfers a family-owned and operated business to the second generation and the value decreases, is the tax redetermined?
The proposal also introduces rules related to the valuation of property for purposes of calculating the tax. The rule states that partial interests in property will be valued as a fraction of the whole. Clarity is then needed on the use of common discounts for lack of liquidity or control.
Overall, there are more answers about the proposed reform of capital gains taxation, but the retroactive dates and the uncertainty surrounding other planning will need to include provisions allowing them to undo the planning if legislative action occurs. Individuals with large capital gain transaction contemplated in 2021 will need to model the transaction under today’s law and under the proposal and work closely with advisors to make the more informed decision.
Imposition of self-employment taxes on ‘active’ S Corporation owners and Limited Partners
The proposal would expand the scope of self-employment taxes and the net investment tax to require that, for ‘high-income taxpayers’, all income derived from a pass-through trade or business be subjected to one or the other regime.
Under current law, ‘passive’ owners of S Corporations and entities taxed as partnerships are subject to the net investment income tax - a 3.8% tax on their share of business income. Meanwhile, ‘active’ owners of partnership entities pay a similar 3.8% amount of self-employment tax. However, ‘active’ owners of S Corporations and certain active ‘limited partners’ (including certain LLC owners) are not subject to either tax.
The Administration’s proposal would ‘rationalize’ these rules by –
- Expanding the definition of net investment tax to include all trade or business income that is not otherwise subject to employment taxes, and
- Subjecting active S Corporation owners, ‘limited partners’ and LLC members to self-employment tax on their distributive shares of income.
These changes would only apply over certain income thresholds ($400,000 of income, not indexed for inflation) and would retain exemptions from self-employment tax provided under current law for certain types of income allocable to active owners (e.g. rents, gains from the sale of business assets, and certain retired partner income). The proposal would be effective for tax years beginning after Dec. 31, 2021.
As with any substantial changes to the tax code, the proposal raises questions regarding choice of entity for income tax purposes. While the increase to the ordinary tax rate to as much as 43.4% may cause some to question whether a 28% corporate rate may be more palatable, one must also consider the ‘dual’ taxation of corporations. When combined with an increased qualified dividend rate, the effective federal tax rate for a corporation under this proposal could be over 59.25%. In addition, treatment of death as a realization event may negate many of the basis ‘step-up’ benefits for corporate stock.
In addition to C Corporation vs. pass-through form, the imposition of self-employment taxes may cause many businesses (especially new entities) to re-evaluate the benefits of the S Corporation form when compared with partnerships. The exception from self-employment taxes has long been one of the primary benefits of an S Corporation, but comes at a cost of limited flexibility and ownership.
As promised in the American Families Plan, the Greenbook details a proposal to tax income attributable to partnership interests received in exchange for investment services (commonly referred to as ‘carried interests’) as ordinary income, regardless of the character of the income in the hands of the partnership. The mechanics described in the Greenbook appear to follow a bill that has regularly been introduced by Democratic representatives over the past decade, most recently earlier this year. Unlike previous bills, however, the effect of this proposal would be limited to taxpayers earning greater than $400,000 in a year. Taxpayers earning under this threshold would continue to be subject to the existing three-year rule for long-term capital gains attributable to carried interests (section 1061). For more details, refer to our prior tax alert.
The proposal would be effective for tax years beginning after Dec. 31, 2021.
Repeal deferral of gain from like kind exchanges
In the wake of the TCJA, section 1031 may be taking another blow that would further limit its applicability. The Administration has repeatedly expressed its views that like-kind exchanges are a loophole and signaled its eagerness to make taxable high-gain transactions that have historically been tax-deferred. The Administration’s proposals would continue the historic limitation on the types of property subject to deferral under section 1031, and if enacted as drafted in the Greenbook, would further limit the applicability of section 1031 by limiting the amount of gain deferral to only $500,000 ($1 million for married couples filing jointly) for exchanges completed in tax years beginning after Dec. 31, 2021.
There are a number of industries that would be affected by the proposed change in law, particularly those with large and valuable land holdings, including, oil and gas, mineral industries, and private equity that invest in real property through vehicles, such as Real Estate Investment Trusts (REITs).
Taxpayers considering like-kind exchanges may want to push up those plans. Given the effective date of the proposed legislation if passed, most taxpayers who begin a like-kind exchange in June 2021 or later likely would not be able use the full 180-day period to complete the exchange without triggering the cap on deferral.
The new legislation if enacted could encourage taxpayers to break up real property and devise other tax planning strategies in order to fall within the limitation.
In conjunction with proposed changes to the capital gains rate and the proposed limitation on stepped-up basis, taxpayers relying on like-kind exchanges for various planning goals should consult with their tax advisors to discuss how to deal with the proposed limitations so they may act quickly if enacted.
Make permanent rules from TCJA related to excess business losses for non-corporate taxpayers
TCJA limited the deductibility of business losses to offset nonbusiness income to an inflation-adjusted number of $524,000 for a married couple ($262,000 for all other taxpayers). These rules were originally set to expire in 2026 and were recently extended to 2027 as part of the American Rescue Plan. The proposal would make these limitations permanent with the goal of leveling the playing field between corporate and flow-through businesses.
The Administration proposes a multi-year adjustment to the discretionary spending allocation for the IRS Enforcement and Operations Support accounts. The total adjustment would be $6.7 billion over the budget window, with the proposed allocation adjustment for 2022 funding $417 million in enforcement and compliance initiatives and investments above current levels of activity. In addition, the Administration proposes to provide the IRS $72.5 billion in mandatory funding over the budget window. A portion of these proposed IRS resources would fund improvements and expansions in enforcement and compliance activities. The proposed mandatory funding would also provide the IRS with resources to enhance its information technology capability, including implementation of the proposed financial information reporting regime, and to strengthen taxpayer service. The proposal would direct that additional resources go toward enforcement against those with the highest incomes, rather than Americans with actual income of less than $400,000.
Financial institutions would report data on financial accounts in an information return. The annual return will report gross inflows and outflows with a breakdown for physical cash, transactions with a foreign account and transfers to and from another account with the same owner. This requirement would apply to all business and personal accounts from financial institutions, including bank, loan and investment accounts with the exception of accounts below a low de minimis gross flow threshold of $600 or fair market value of $600. Current income reporting by financial institutions would be expanded to all entities, including certain corporations. Interest payments would be included in the loan account reporting. Transferee information would be reported for all real estate transactions on Form 1099-S.
Similar reporting requirements would apply to crypto asset exchanges and custodians. Separately, reporting requirements would apply in cases in which taxpayers buy crypto assets from one broker and then transfer the crypto assets to another broker, and businesses that receive crypto assets in transactions with a fair market value of more than $10,000 would have to report such transactions.
The proposal would be effective for tax years beginning after Dec. 31, 2022.
Improve tax administration
The Administration proposes to amend Title 31, U.S. Code (Money and Finance) to provide the Secretary with explicit authority to regulate all paid preparers of Federal tax returns, including the unlicensed and unenrolled by establishing mandatory minimum competency standards. Part of the proposal increases the penalty amount to the greater of $500 per return or 100% of the income derived per return by a ghost preparer. The proposal would also increase the limitations period during which the penalty may be assessed from three years to six years. This proposal would be effective for returns required to be filed after Dec. 31, 2021
To further improve tax administration, the proposal requires electronic filing of returns filed by taxpayers reporting larger amounts or that are complex business entities, including: (1) income tax returns of individuals with gross income of $400,000 or more; (2) income, estate, or gift tax returns of all related individuals, estates, and trusts with assets or gross income of $400,000 or more in any of the three preceding years; (3) partnership returns for partnerships with assets or any item of income of more than $10 million in any of the three preceding years; (4) partnership returns for partnerships with more than 10 partners; (5) returns of REITs, REMICs, RICs and all insurance companies; and (6) corporate returns for corporations with $10 million or more in assets or more than 10 shareholders.
Return preparers that expect to prepare more than 10 corporation income tax returns or partnership returns would be required to file other certain forms electronically.
This proposal would be effective for payments made after Dec. 31, 2021.
In addition, the proposal would also treat all information returns subject to backup withholding similarly. Specifically, the IRS would be permitted to require payees of any reportable payments to furnish their TINs to payors under penalty of perjury. This proposal would be effective for payments made after Dec. 31, 2021.
The Administration would also require brokers, including entities such as U.S. crypto asset exchanges and hosted wallet providers, to report information relating to certain passive entities and their substantial foreign owners when reporting with respect to crypto assets held by those entities in an account with the broker. The proposal, if adopted, and combined with existing law, would require a broker to report gross proceeds and such other information as the Secretary may require with respect to sales of crypto assets with respect to customers, and in the case of certain passive entities, their substantial foreign owners.
The proposal would be effective for returns required to be filed after Dec. 31, 2022
In general, increased funding, enforcement and compliance will mean more examinations and possible penalties. The supervisor approval of penalties proposal is significant. Extending the assessment statute on listed transactions and making sellers of stock in intermediary transactions liable is also significant, giving IRS more time to examine and go after the TP with assets. Collectively, these measures are all in line with the Administration’s intent to invest more money into enforcement with a view toward closing the tax gap and raising revenue.
In addition to the return requirements above, the Administration proposes several other changes in tax administration. These include:
- Addressing taxpayer noncompliance with listed transactions. The proposal would increase the limitations period under section 6501(a) of the Internal Revenue Code (Code) for returns reporting benefits from listed transactions from three years to six years. The proposal also would increase the limitations period for listed transactions under section 6501(c)(10) from one year to three years. This proposed change would be effective on the date of enactment.
The proposal would also add a new section to the Code that would impose on shareholders who sell the stock of an ‘applicable C corporation’ secondary liability (without resort to any State law) for payment of the applicable C corporation’s income taxes, interest, additions to tax and penalties to the extent of the sales proceeds received by the shareholders.
The proposed changes above would be effective for sales of controlling interests in the stock of applicable C corporations occurring on or after April 10, 2013.
- Amending the centralized partnership audit regime to address tax decreases greater than a partner’s income tax liability. The proposal would amend sections 6226 and 6401 of the Code to provide that the amount of the net negative change in tax that exceeds the income tax liability of a partner in the reporting year is considered an overpayment under section 6401 and may be refunded. The proposal would be effective upon enactment.
- Modifying requisite supervisory approval of penalty included in notice. The proposal would clarify that a penalty can be approved at any time prior to the issuance of a notice from which the Tax Court can review the proposed penalty and, if the taxpayer petitions the court, the IRS may raise a penalty in the court if there is supervisory approval before doing so. For any penalty not subject to Tax Court review prior to assessment, supervisory approval may occur at any time before assessment. In addition, this proposal expands approval authority from an ’immediate supervisor’ to any supervisory official, including those that are at higher levels in the management structure or others responsible for review of a potential penalty. Finally, this proposal eliminates the written approval requirement under section 6662 for underpayments of tax; section 6662A for understatements with respect to reportable transactions; and section 6663 for fraud penalties. The proposal would effective upon enactment.
- Authorizes limited sharing of business tax return information. The proposal would give officers and employees of Bureau of Economic Analysis (BEA) access to Federal tax information (FTI) of those sole proprietorships with receipts greater than $250,000 and of all partnerships. BEA contractors would not have access to FTI.
The proposal would also give Bureau of Labor and Statistics (BLS) officers and employees access to certain business (and tax- exempt entities) FTI. BLS would not have access to individual employee FTI.
The proposal would be effective upon enactment.
Making permanent many benefits for America’s workers
The Greenbook also proposes to make permanent many aspects of the American Rescue Plan. Amongst these provisions are:
- Expansion of Premium Tax Credits for health insurance purchased on the Marketplace.
- Expansion of the Earned Income Tax Credit (EITC) for Workers without Qualifying Children.
- Expansion and refundability of the Child and Dependent Care Tax Credit coupled with increased reporting requirements.
In addition to these permanent changes, the administration is proposing and extension of the expanded refundable Child Tax Credit through tax years beginning before Jan. 1, 2026.
Increase in employer provided childcare tax credit for businesses
The administration has also proposed an increase in the tax credit related to employer provided childcare. This credit currently offers a nonrefundable credit equal to 25% of qualified care expenditures and 10% of referral expenses capped at $150,000. The proposal would allow for a credit equal to 50% of the first $1 million spent on employer provided childcare. Providing for a maximum credit of $500,000. This provision would be applicable for tax years beginning after Dec. 31, 2021.
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