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Hot-button tax issues straight from Washington

July 14, 2016
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I recently had the opportunity to attend a national real estate and partnership tax conference in Washington, D.C. Snoozefest, right?

Maybe for you, but it was a great chance for me to hear from the foremost leaders in the field.

One of the sessions was a legislative outlook for real estate. The panel consisted of a D.C. tax think tank senior vice president and a true Washington insider who has written various Department of Treasury regulations and is currently working for a prominent U.S. senator.

The first item they discussed was regarding the state of taxation in the current Congress. They stated that the U.S. Senate breaks on July 15 and resumes session after Labor Day. This limits the action that can take place between now and the end of the year.

Congress is not currently focusing on any of the tax provisions that are set to expire at the end of the year. Those provisions will likely lapse and will be addressed in the beginning of the new year. At this point, we cannot expect significant tax reform until after the election.

Bottom line: we are in a relatively unique situation because of the coming election and because most of the “important” extenders such as Section 179 depreciation were permanently extended in last year’s PATH Act.

Following are a few of the hot-button issues that the panel identified:

  • The Senate is very concerned with the U.S. business tax base. Global tax rates are low relative to the high U.S. rates. Foreign countries are implementing strategies against the U.S. tax base such as revisiting their versions of the transfer pricing rules. Foreign companies are very active in acquiring U.S. companies. All of this favors “inversions,” in which U.S. companies change their tax home to another country. Washington views this as a problem that must be fixed.
  • Sometime in the next five years or so there will be substantial tax reform (more on that later). Here are a few taxpayer-friendly provisions that could be reduced or eliminated: long-term capital gains rates, like-kind exchange deferrals, carried interest, historic preservation credits, deductibility of mortgage interest and property taxes, and the stepped-up basis at death provisions.
  • One item that we should see is additional technical corrections regarding the latest partnership audit reforms. In a nutshell, the tax impact of an audit of an entity taxed as a partnership — such as an LLC — has changed dramatically. Before, if a partnership was audited, the deficiency in tax was ultimately assessed at the individual level. Now under certain circumstances, the tax deficiency can be assessed at the partnership level at the highest personal tax bracket without taking into account the impact of any partner attributes. For example, sometimes an individual has enough losses from another activity to absorb an increase in income from the audited activity. As a result, there may be no change at all to the partner’s return. The new rule disregards partner attributes and taxes the company itself on the deficiency. Often a change in the fundamentals of tax law gives rise to more questions than answers. This is no different. This gives rise to an amazing amount of complexities that can only be resolved with additional guidance or, ultimately, in a court of law.

The panel also discussed the principles of tax reform. They agreed on the following:

  • Tax reform should promote economic growth by encouraging companies to take an appropriate amount of risk.
  • Tax reform should be fair and reflect the underlying transaction and avoid excessive incentives or disincentives.
  • Tax reform should simplify the tax code and provide certainty with permanent changes. A perfect example occurred last December when Congress adopted a permanent Section 179 depreciation deduction rather than merely extending it one year at a time as in past years.

I agree that the tax code should be written to encourage investment and growth with an element of risk. It’s the other two items that appear mutually exclusive to me. The second principle centers on parity and fairness. The third focuses on simplicity. Is it even possible to have a fair and simple tax code? To me, a tax code that is fair to everyone cannot be simple, and vice versa!

I appreciated the insight of the panel and their willingness to acknowledge many of the shortcomings of our tax code. And I especially enjoyed their perspective into the theory of tax reform. But the cynic (or realist) in me struggles to believe that with all of the political factions, special interest groups and lobbyists, finding that perfect mix of utopian fairness and simplicity in tax reform is something that will not happen anytime soon.

Thank goodness for job security!

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