Jobs Bill on Senate Floor Next Week
Senate leadership has committed to taking up a Jobs bill next week. The details of the package are still being worked out, but the list released by the Senate Democrats includes:
- Job Creation tax credit
- UI and Cobra Extensions
- Bonus depreciation and 179 expensing
- Highway funding
- Build America Bonds
- SBA loans
- Export Promotion
- Some energy related tax items
Although it’s not mentioned, we do expect the tax extenders to also be part on the mix. On the other hand, an estate tax fix is not likely to be included. Senator Reid told reporters that he still plans to move legislation restoring the estate tax, just not now. Meanwhile, policymakers are increasingly worried that time is slipping by. As BNA reported earlier:
Proponents of making the estate tax retroactive to Jan. 1 say case history is on their side, although they admit it will be more complicated because the longer they wait to enact legislation, the more people will attempt to game the tax system.
We are not exactly sure how one would “game” the current system. You have to pass away, after all, to take advantage of the current rules. Final jeopardy, indeed. Takeaway: more chatter about getting something done, but no clarity on when they would do it, what it would look like, whether the House is on board with the retroactive application, or whether they have better guidance on the constitutionality question.
Also, we are hearing from folks that a possible solution would be to offer estates the option of using the 2009 rules or the repeal rules. Point of this would be to protect those mid-sized estates (around $7 million) from paying more under repeal than they would have under last year’s rules. That would certainly get around the retroactive question, but it would also raise the cost of acting.
Rep. Paulsen Weighs in on Marginal Rates
The battle over tax rates is heating up. This week, Congressman Erik Paulsen (R-MN) sent the President a letter asking him to focus on proposals that would hold down marginal tax rates and spur small business growth.
The letter refers to a bill introduced by Rep. Paulsen (H.R. 2284) in May that would allow individual taxpayers an exclusion from gross income for certain items of partnership and S corporation pass-through income up to $250,000 ($500,000 for married couples filing joint returns). As Rep. Paulsen notes, this ability to defer taxes on reinvested income “ensures that small business owners are taxed only on the profits taken out of their business, and also allows for the deferment of taxes on income that was placed back into developing their business. By encouraging reinvestment and incentivizing job creation, we can reach our shared goal of economic growth.”
Paulsen also discusses the possibility of creating “an alternative rate schedule for income stemming from small business activity, including sole proprietor, partnership, and S corporation income” in order to “ensure that marginal tax rates would not rise for America’s job creators during a weak economy.”
Amen to that. America has a vibrant, active Main Street business sector because past Congresses have proactively adopted policies to encourage small business creation and growth. Creation of the S corporation was one of those policies. Now is not the time to reverse course.
John Edwards and S Corporations
One of our allies asked us, “How did John Edwards come to be the poster child for S corporations?” He’s featured prominently in a recent CongressDaily story and, frankly, it’s not an association we’re eager to continue.
The Edwards issue first emerged during the 2004 presidential campaign when we learned that, prior to be elected, Senator Edwards operated his law practice as an S corporation. According to reports — recapped by CongressDaily — Edwards took most of his earnings in the form of S corporation distributions which are not subject to payroll taxes.
As you can imagine, this use of the S corporation caught everybody’s attention and the “John Edwards Issue” was born. We still hear “Oh, is this that John Edwards thing?” when we talk to staff about payroll taxes.
While the payroll tax issue continues to be difficult for policymakers and tax collectors alike, the rules governing when S corporation shareholders pay payroll taxes have been in place for long time. Since the IRS released Revenue Ruling 59-221 back in 1959, S corporation shareholders have been required to pay payroll taxes, but only if they work at their business and only on the wages they pay themselves. Revenue Ruling 74-44 made clear that “dividends” paid to shareholders will be recharacterized as wages when the dividends are in lieu of reasonable compensation for services performed for the S corporation.
Despite these clear rules, when Congress lifted the cap on the Medicare payroll tax back in 1993, it created an arbitrage opportunity for business owners whose income exceeds the Social Security wage base. Organize as an S corporation, pay yourself little or no salary, and avoid paying the Medicare tax.
The S Corporation Association’s position on this is three-fold. First, people should pay the taxes they legally owe — we don’t support tax avoidance. Second, while it is admittedly time-consuming, the IRS has the tools necessary to deal with this issue and collect the money owed. As the IRS wrote one taxpayer back in 2003:
Generally, under the rules described above, if a shareholder of an S corporation performs services for the corporation, any distribution to the shareholder, even if legally declared under state law by the S corporation as a dividend, will be characterized as “wages” subject to employment taxes where in reality the payments are for services. An S corporation cannot avoid employment taxes merely by paying the corporate shareholder “dividends” in lieu of reasonable compensation for services performed.
Third, every legislative proposal we have seen to date to “fix” this issue has been overly broad and would raise taxes on shareholders already fully complying with the law.
As we mentioned, applying the “reasonable compensation” standard is difficult and time-consuming, but the standard is well established and ensures that payroll taxes only apply to shareholder income derived from their services, as opposed to income stemming from their investments in the business and its employees. As you can imagine, capital-intensive industries like manufacturers and others are keenly interested in making certain this line of demarcation is preserved.
The GAO spent the last year looking into S corporations and the tax policy challenges they present. On the payroll tax issue, the GAO recognized that the IRS has the tools in place to enforce current law. Its recommendation:
To help address the compliance challenges with S corporation rules, the Commissioner of Internal Revenue should require examiners to document their analysis such as using comparable salary data when determining adequate shareholder compensation or document why no analysis was needed.
We understand the current rules are not a perfect solution to the “John Edwards Issue.” But then, nothing else is either. We hope the IRS follows the GAO’s recommendation and works to improve its guidance and enforcement of reasonable compensation. Effective enforcement would take the pressure off policymakers to codify new rules, and remove from the S corporation community the threat that fifty years of tax policy will be turned on its head.
S-Corp Organizes Defense of Family Business
Under consideration is the issue of Family Attribution, which has the effect of dramatically raising the estate tax burden on family-owned businesses relative to those not owned by family members. Family Attribution was originally embraced by the IRS in the 1980s, and despite being rejected by the courts in several prominent cases, the idea continues to be put forward. Earlier this year Congressman Earl Pomeroy (D-ND) introduced the “Certain Estate Tax Relief Act of 2009” (H.R. 436), which, among other items, would create an alternative and more punitive definition of fair market value for business assets that are transferred to members of the same family.
S Corporation Association Chairman Dick Roderick applauded the efforts of the coalition and those members of Congress who have a history of supporting family enterprise. “Family businesses play a vital role in our economy, and it is important to ensure their continued success” he noted. “Imposing a higher estate tax on businesses simply because they are owned by a family does not make sense. We look forward to working with our friends on the Hill to ensure this idea does not become law.”
The letter was signed by the following organizations: American Hotel & Lodging Association, AMT – The Association For Manufacturing Technology, Associated Builders and Contractors, Independent Community Bankers Of America, National Association of Manufacturers, National Association of Wholesalers-Distributors, National Beer Wholesalers of America, National Funeral Directors Association, National Lumber and Building Material Dealers Association, National Restaurant Association, National Roofing Contractors Association, Printing Industries of America, S Corporation Association of America, United States Chamber of Commerce, and the Wine & Spirits Wholesalers of America.
House Health Care Bill Surtax
S corporations should be paying strict attention to the health care bill offered up by House leadership last week. The new bill imposes a 5.4 percent surtax on income above $500,000 for individuals and $1 million for families. Like most taxes applied to personal income, this surtax applies to flow-through business income as well as wages. It also applies to capital gains, dividends, rents, etc. (It may also apply to trusts and other structures — we’re checking.)
Revenue offsets for health care reform need to accomplish at least two goals: raise enough money to cover expanded coverage over the next ten years, and grow at least as fast as health care costs to fully cover expanded coverage costs in years eleven and beyond. The surtax before the House raises $461 billion over the next decade, covering about half the cost of expanding health insurance coverage; the other half is offset with provider payment cuts to Medicare and an assortment of other revenue raisers.
Perhaps just as important, the thresholds for the surtax are not indexed, so the threshold for individuals paying the tax would remain at $500,000 while the threshold for families would stay at $1 million over time. This imbedded bracket creep is necessary for the bill’s authors, since it’s the only way an income tax can be constructed to grow at about the same rate as health care costs.
The Congressional Budget Office indicates that the overall bill – spending minus savings and taxes – results in a surplus for years one through ten, while “in the subsequent decade, the collective effect of its provisions would probably be slight reductions in federal budget deficits. Those estimates are all subject to substantial uncertainty.”
So, the House health care reform bill apparently lives up to the promise not to increase the federal budget deficit in the long term, but only at the cost of drastically raising marginal taxes on a significant portion of business income and reversing a quarter-century of tax policy committed to indexing thresholds to ensure the federal government doesn’t profit from inflation. By all accounts, the surtax will face rough sledding in the Senate. We hope so. We also hope policymakers have a chance to fully explore the implications of an un-indexed marginal rate increase of this size.
Marginal Tax Rate Outlook
And where will Congress be in fourteen months with top marginal rates at 45 percent? It will be looking at a federal deficit that exceeds one trillion dollars, a Social Security system that is now operating under a cash flow deficit (i.e. its taking money from the general treasury rather than contributing to it), and a Federal Reserve and Treasury working overtime to unwind several trillion dollars worth of balance sheet buildup incurred during the recent financial crisis.
No wonder the markets are spooked. Happy belated Halloween.
House Releases Health Care Legislation
As expected, House Leadership released its health care reform plan yesterday — America’s Affordable Health Choices Act of 2009 (H.R. 3200). As you can imagine, there are any number of provisions to explore in a 1000-page health care bill, but for S corporations, the big four items appear to be:
- The new health insurance exchange;
- The surtax on high income individuals;
- The health insurance tax credit for smaller firms; and
- The payroll tax penalty for non-participating firms.
Supporters of the plan argue that the combination of the health care exchange and the small business tax credit will provide a net benefit to S corporations and other small businesses. Opponents point to the higher taxes and penalties for firms that choose not to offer health care plans to their employees.
They also question whether the overall plan will actually save money. The CBO estimates it will cost money after all – more than $1 trillion dollars. Of particular importance is the response of the moderate Democratic Blue Dog Coalition. As BNA reported this morning:
Rep. Mike Ross (D-Ark.), chairman of the Blue Dog Health Care Task Force, said his group was committed to passing health care reform. He also said that “reform that does not meet the president’s goal of substantially bringing down costs is not an option.”
We are not in a position to judge how successful the exchange will be. The only example is the one in Massachusetts and that one has both supporters and detractors. As for the other three provisions, here’s our best summary:
Surtax: Starting in 2011, a surtax of 1, 1.5 and 5.4 percent will be applied on “modified” AGI exceeding $350,000, $500,000 and $1 million respectively (joint filers). Unless OMB certifies that the bill’s changes to Medicare and Medicaid result in an additional $150 billion in cost savings, the surtax will rise to 2, 3, and 5.4 percent starting in 2012. If OMB certifies these savings exceed $175 billion, then the lower two surtaxes go away.
Small Business Tax Credit: For employers with fewer than 25 employees and who offer them qualified coverage, they are eligible for a tax credit equal to a percentage of their health care costs. The credit starts at 50 percent for employers with fewer than 11 employees and average annual compensation of less than $20,000. It phases out for more employees and higher salaries. A firm with 25 employees and/or average compensation of more than $40,000 gets no credit.
Payroll Tax Penalty: Firms that do not pay for at least 65 percent of their employees’ qualified coverage are subject to a payroll tax penalty. The tax starts at 2 percent of payroll for firms whose payroll exceeds $250,000 and rises to 8 percent for firms with payrolls exceeding $400,000. It is unclear whether the payroll tax applies to all payroll or just the amount exceeding the threshold.
Suffice to say that the complexity of each provision is worth its own white paper. Trying to gauge the interaction between them is simply impossible. Here are some observations and questions:
- How does the payroll tax penalty work? If an employer does not offer qualified coverage to his/her employees, does the tax apply to all payroll or just the amount above the threshold? How does the bill define firm? By entity or by establishment?
- The plan penalizes employers for expanding their payroll. If the employer offers qualified coverage, raising wages would reduce their credit. If they don’t, increased wages will increase their penalty. Either way, the plan raises the marginal cost of hiring new employees and offering them higher wages.
- The higher surtax rates can be avoided if OMB finds additional savings from Division B in the bill. How is OMB supposed to measure these savings and attribute them to the Division B? If the CBO failed to measure these savings, how will OMB?
- The bill appears to add to the deficit, especially in later years. Is this the plan, or will additional cost savings be offered to make it budget neutral?
- What about the need to balance the budget, reform the Alternative Minimum Tax, extend some or all of the expiring tax relief, or make the corporate tax code more competitive? How will Congress accomplish all these things if it spends $1 trillion on health care reform?
The House Ways and Means, Labor, and Energy and Commerce committees will begin marking up their respective portions of the bill tomorrow. Expect these markups to be extremely contentious. The Speaker’s goal is to get the bill through the full House before the August recess. Given the primary importance both the Speaker and the President have placed on health care reform, we expect this goal will be met. Exactly what changes are necessary to get the plan through the House, however, remains to be seen.
The Surtax and Small Business
The fight over who will pay the surtax has begun. The Ways and Means Committee published its estimates that only 1.2 percent of all taxpayers will pay the tax, and only 4.1 percent of all small business owners.
Our immediate reaction was that small business owners are 3.5 times more likely than the average taxpayer to pay the tax, but even that observation misses the larger point. It’s not the number of taxpayers affected that counts, but rather the amount of economic activity subject to the higher rates.
As we’ve pointed out previously, about two thirds of all small business income is taxed at the top two rates, so any surtax applied to upper incomes is likely to tax a majority of small business income. Moreover, those rates are already scheduled to rise, resulting in a double hit on upper income business owners in 2011 and beyond.
| Marginal Tax Rates Under HR 3200 (Joint Filers) | |||
| AGI | Marginal Rate (2009) | Marginal Rate (2011) | Marginal Rate (2012) |
| $350,000 | 33% | 34.00% | 35% |
| $500,000 | 35% | 41.10% | 42.60% |
| $1,000,000 | 35% | 45% | 45% |
This chart requires several caveats, including pointing out that the surtax applies to “modified” AGI rather than taxable income, but the general point is valid — HR 3200 will return marginal tax rates back to where they were before we started cutting rates in the 1980s.
In addition, this chart doesn’t include the HI tax that now applies to wage income, it doesn’t adjust for taxing “modified” AGI, which includes income from capital as well as labor, it doesn’t include the impact of restoring PEP and Pease, and it doesn’t include state and local taxes. All told, the effective marginal rates on higher incomes will easily exceed 50 percent under this plan.
One last point. When taxing the rich is debated, the discussion usually ignores the actual amount of taxes being paid. Your S-CORP team thinks that’s a mistake.
For example, the CBO reports that the top fifth of taxpayers pay, on average, $64,000 in federal taxes every year. The top one percent pay over half a million.
How much more will HR 3200 add to this burden? And at what level of tax do taxpayers, including small business owners, stop being productive and choose to do something else with their time?
The Washington Post Discovers Small Employers
The Washington Post this week reported on an issue that shouldn’t come as a surprise for S-CORP readers: President Obama’s tax plans could hurt many of America’s small businesses. Small business owners who report their business profits on their personal income returns (like most small business owners do) are suddenly finding themselves classified as the “richest” Americans, and thereby subject to Obama’s tax increases. The Post explains:
Across the nation, many business owners are watching anxiously as the President undertakes expensive initiatives to overhaul health care and expand educational opportunities, while also reining in runaway budget deficits. Already, Obama has proposed an extra $1.3 trillion in taxes for business and high earners over the next decade. They include new limits on the ability of corporations to automatically defer U.S. taxes on income earned overseas, repeal of a form of inventory accounting that tends to reduce business taxes, and a mandate that investment partnerships pay the regular income tax rate instead of the lower capital gains rate.
The Washington Post is catching up to what S-CORP and its friends have been pointing out for a while now — if your goal is to reinvigorate the economy, placing additional burdens upon the very business that can help pull us out of this crisis is the wrong way to go. The example used by the Post — Gail Johnson of Richmond, Virginia — should give S corporation shareholders pause:
Johnson declined to say whether she voted for Obama. But she said she ignored his tax plans until her husband, who handles real estate and construction for the schools, mentioned it one day. “I’ve since talked to my accountant,” she said. “And, oh, my gosh!”
In a typical year, Johnson’s federal tax bill would be about $120,000. But starting in 2011, the higher marginal rates would add about $13,000 a year, Hurst said. Capping the value of itemized deductions at 28 percent would add another $10,000, for a total increase of $23,000.
And Johnson’s tax bill stands to grow dramatically if Obama were to revive a plan to apply Social Security tax to income over $250,000 instead of capping it at the current $106,800. Because Johnson is an employee and an employer, she would have to pay both portions of the tax, Hurst said, tacking another $30,000 onto her bill.
That’s a potential $50,000 tax increase for a small employer whose family earns about $500,000 a year, including the income from her business. It’s hard to see how increasing her federal tax bill (this does not include state and local taxes) from around $120,000 to $170,000 would not harm Gail’s plans to invest in her business and hire additional employees.
Budget Plan Finished
On that note, perhaps the most frustrating aspect of the tax increases outlined above is that they simply will not be enough. Federal deficits are going sky-high and higher taxes on the middle-class are all but inevitable. House and Senate negotiators this week put the final touches on the budget outline for next year. For S corporations, three major items stand out: total deficit estimates, the estate tax and the inclusion of reconciliation instructions for health care.
The Congressional Budget Office estimates that the Obama budget, if enacted, would result in deficits of $1.8 trillion, $1.4 trillion, $1 trillion, $658 billion, $672 billion, and $749 billion over the next five years. That’s a cumulative of $4.4 trillion over five years, or $1.7 trillion more than if we simply did nothing over the next five years and maintained current law.
The U.S. government has never run deficits of that magnitude and exactly how the debt will be financed is an open question. To put these five-year numbers in perspective, over eight years of President Bush — who is rightly criticized for not paying more attention to holding down spending – debt held by the public increased by $2.4 trillion. The budget offered up by conferees this week has deficit estimates that are smaller than the Obama budget, but not enough to address the question of who is going to finance all that debt.
Regarding the estate tax, the budget agreement calls for maintaining the 2009 rates and exemption levels of 45% and $3.5 million per spouse. While the Senate’s original budget allowed for higher exemption levels and a lower rate, the House ultimately prevailed and stuck with freezing the 2009 rules.
On the reform front, the resolution will include “reconciliation instructions” for health care reform. As S-CORP readers know, reconciliation is valuable to the majority in the Senate because it allows for controversial items to pass the Senate with a simple majority rather than the usual 60 votes.
There are limitations, however, because bills brought to the Senate floor under reconciliation may not increase the deficit outside of the budget window, which means whatever they enact under this budget would have to be sunset after five years.
S corporation shareholders know how these sunsets work — we have been dealing with the uncertainty of the estate tax repeal sunset for a decade now. How effective could broad-based health care reform be if it goes away in just five years?
Moreover, reconciliation bills may not include provisions with no or little impact on revenues and spending. The core provision in most health reform plans is to create a health insurance “exchange” similar to the Connector up in Massachusetts. This may or may not be a good idea, but it doesn’t have a significant impact on either revenues or spending and would likely fall outside of reconciliation. For a full review of these issues, we recommend reading the analysis of S-Corp ally Keith Hennessey.
Bottom line: Attempting to reconcile health care reform could cost the majority more than it’s worth, especially with Senator Specter now aligning himself with the Democratic Caucus.
The Washington Post Discovers Small Employer
The Washington Post this week reported on an issue that shouldn’t come as a surprise for S-CORP readers: President Obama’s tax plans could hurt many of America’s small businesses. Small business owners who report their business profits on their personal income returns (like most small business owners do) are suddenly finding themselves classified as the “richest” Americans, and thereby subject to Obama’s tax increases. The Post explains:
Across the nation, many business owners are watching anxiously as the President undertakes expensive initiatives to overhaul health care and expand educational opportunities, while also reining in runaway budget deficits. Already, Obama has proposed an extra $1.3 trillion in taxes for business and high earners over the next decade. They include new limits on the ability of corporations to automatically defer U.S. taxes on income earned overseas, repeal of a form of inventory accounting that tends to reduce business taxes, and a mandate that investment partnerships pay the regular income tax rate instead of the lower capital gains rate.
The Washington Post is catching up to what S-CORP and its friends have been pointing out for a while now — if your goal is to reinvigorate the economy, placing additional burdens upon the very business that can help pull us out of this crisis is the wrong way to go. The example used by the Post — Gail Johnson of Richmond, Virginia — should give S corporation shareholders pause:
Johnson declined to say whether she voted for Obama. But she said she ignored his tax plans until her husband, who handles real estate and construction for the schools, mentioned it one day. “I’ve since talked to my accountant,” she said. “And, oh, my gosh!”
In a typical year, Johnson’s federal tax bill would be about $120,000. But starting in 2011, the higher marginal rates would add about $13,000 a year, Hurst said. Capping the value of itemized deductions at 28 percent would add another $10,000, for a total increase of $23,000.
And Johnson’s tax bill stands to grow dramatically if Obama were to revive a plan to apply Social Security tax to income over $250,000 instead of capping it at the current $106,800. Because Johnson is an employee and an employer, she would have to pay both portions of the tax, Hurst said, tacking another $30,000 onto her bill.
That’s a potential $50,000 tax increase for a small employer whose family earns about $500,000 a year, including the income from her business. It’s hard to see how increasing her federal tax bill (this does not include state and local taxes) from around $120,000 to $170,000 would not harm Gail’s plans to invest in her business and hire additional employees.
Budget Plan Finished
On that note, perhaps the most frustrating aspect of the tax increases outlined above is that they simply will not be enough. Federal deficits are going sky-high and higher taxes on the middle-class are all but inevitable. House and Senate negotiators this week put the final touches on the budget outline for next year. For S corporations, three major items stand out: total deficit estimates, the estate tax and the inclusion of reconciliation instructions for health care.
The Congressional Budget Office estimates that the Obama budget, if enacted, would result in deficits of $1.8 trillion, $1.4 trillion, $1 trillion, $658 billion, $672 billion, and $749 billion over the next five years. That’s a cumulative of $4.4 trillion over five years, or $1.7 trillion more than if we simply did nothing over the next five years and maintained current law.
The U.S. government has never run deficits of that magnitude and exactly how the debt will be financed is an open question. To put these five-year numbers in perspective, over eight years of President Bush — who is rightly criticized for not paying more attention to holding down spending – debt held by the public increased by $2.4 trillion. The budget offered up by conferees this week has deficit estimates that are smaller than the Obama budget, but not enough to address the question of who is going to finance all that debt.
Regarding the estate tax, the budget agreement calls for maintaining the 2009 rates and exemption levels of 45% and $3.5 million per spouse. While the Senate’s original budget allowed for higher exemption levels and a lower rate, the House ultimately prevailed and stuck with freezing the 2009 rules.
On the reform front, the resolution will include “reconciliation instructions” for health care reform. As S-CORP readers know, reconciliation is valuable to the majority in the Senate because it allows for controversial items to pass the Senate with a simple majority rather than the usual 60 votes.
There are limitations, however, because bills brought to the Senate floor under reconciliation may not increase the deficit outside of the budget window, which means whatever they enact under this budget would have to be sunset after five years.
S corporation shareholders know how these sunsets work — we have been dealing with the uncertainty of the estate tax repeal sunset for a decade now. How effective could broad-based health care reform be if it goes away in just five years?
Moreover, reconciliation bills may not include provisions with no or little impact on revenues and spending. The core provision in most health reform plans is to create a health insurance “exchange” similar to the Connector up in Massachusetts. This may or may not be a good idea, but it doesn’t have a significant impact on either revenues or spending and would likely fall outside of reconciliation. For a full review of these issues, we recommend reading the analysis of S-Corp ally Keith Hennessey.
Bottom line: Attempting to reconcile health care reform could cost the majority more than it’s worth, especially with Senator Specter now aligning himself with the Democratic Caucus.
Obama’s Tax Plans Take Shape
President Obama released a 140-page outline of his budget today that reflects his revenue and spending priorities for the next couple of years.
Chief among these is a major change in federal health care policies. As made clear in his speech to Congress the other day, health care reform is first among the several big reforms on the table and his budget sets aside $634 billion of the estimated $1 trillion he plans to spend on the plan.
To raise the $634 billion, Obama calls for: 1) limiting itemized deductions for families earning more than $250,000, starting in 2011; 2) cutting payments to Medicare Advantage plans; and 3) reducing Medicaid payments to hospitals and drug makers.
Other key proposals include:
- Beginning in 2011, increasing the top two income tax rates to 39.6 and 36 percent respectively while raising rates on capital gains and dividends to 20 percent, consistent with President Obama’s promise to raise taxes on families earning over $250,000.
- Raising $353 billion through the elimination of so-called business loopholes including limiting the ability of firms to defer tax payments on overseas income and LIFO repeal.
- Raising the tax rates applied to so-called “carried interest” earned by hedge fund managers and other professionals.
- Calling for a cap-and-trade program to limit carbon emissions with 100 percent of the credits auctioned off. The resulting revenue would be used to fund clean energy programs and be returned to families and small businesses.
- Locking into place the 2009 estate tax rate and exemption levels.
We will have more reports in coming days, but suffice it to say that the Obama outline, if enacted intact, would result in significantly higher tax rates for many S corporations that would be imposed on a significantly larger income base.
The one piece of good news is that the budget, reflecting the current economic climate, does not attempt to accelerate the rate increases on upper-income families, but rather allows the current rules to take effect whereby the lower rates expire beginning in 2011.
As students of government know, the President’s annual budget submission is required by Congress and is just the first step in the year-long process of establishing the government’s spending and revenue limits. Given the current make-up of Congress, however, we expect the plan outlined today to be the presumptive starting place for congressional deliberations — especially in the House. For S corporations, that means we will be playing a lot of defense for the next few months.
Do Marginal Rates Matter?
Perhaps the biggest tax debate in the next couple years will be over President Obama’s proposal to raise top tax rates back to their pre-2001 levels. Tax cutters argue that higher marginal tax rates will hurt small businesses and the economy as a whole.
Increasingly, we are hearing the counter argument that marginal rates don’t matter. Policymakers on the Hill have told us that and President Obama’s budget outline appears to endorse that notion as well. A back-and-forth on CNBC this morning does a nice job of outlining the debate.
Your intrepid S-CORP team was around in 1993, and we recall that the Clinton rate increases took place in an extremely positive economic and global climate — the Cold War was over, the Thrift Bailout had run its course, and much of the developed world was moving towards market-based policies. Attributing any effect of higher tax rates to economic performance in that climate is a stretch at best.
In many ways, the climate today is just the opposite of what Bill Clinton inherited in 1993, and we are not at all comfortable that higher tax rates applied to a broader tax base will have limited or minimal impacts on economic activity.
Election Impact on S Corporations
We’ll write more about the election in coming months, but wanted to send out a quick summary of how the elections yesterday affect the S corporation community.
We’ve noted several times that President-elect Obama’s tax policies are not friendly to flow-through businesses. The combination of higher tax rates and a broader base has the potential to significantly increase the marginal and effective tax rates paid by S corporations.
One factor that may retard the push towards higher rates is the weakening economy. Now that the credit crisis appears to be under control, investors and businesses are faced with a classic cyclical slowdown that is likely to extend well into next year. Several Obama advisors have noted that raising taxes in such an environment is unwise, suggesting that the expected broad increase in taxes may be put off for a year or two.
One area where we expect quick action will be the estate tax. Several highly placed tax experts have indicated they have little intention of allowing the scheduled repeal to take place in 2010 followed by the Lazarus-like reemergence of the tax in 2011. Action on the estate tax should take place next year, and may include extending the 2009 rules into 2010 or swapping the estate tax with an inheritance tax.
In the Senate, the Democratic majority has 56 seats, with an additional four seats very much up in the air. As of this writing, S-Corp ally Senator Gordon Smith (R-OR) leads his Democratic opponent, Oregon Speaker of the House Jeff Merkley. However, his lead has decreased over the course of the day with a sizable number of precincts in Democratic-leaning Portland remaining to be counted.
In Minnesota, Senator Norm Coleman leads his Democratic challenger Al Franken by 690 votes with 100% of the precincts reporting. This razor-thin margin sets the stage for a mandatory recount that could take up to a month.
In Georgia, Republican Senator Saxby Chambliss has not yet secured over 50% of the vote, which is necessary under law to avoid a runoff on December 2nd. Senator Chambliss is the likely favorite if there is a runoff, given his Democratic opponent likely benefited from high turnout for Obama voters.
Finally, in Alaska, incumbent Senator Ted Stevens beat Anchorage Mayer Mark Begich (D) by just over 3,000 votes despite being convicted of several felonies last week. Senator Stevens now has the difficult choice of resigning his seat or face possible expulsion. It takes 67 votes to expel a Senator. Unlike many other states, Alaska requires a special election, rather than give the governor the power, to fill a vacant Senate seat. Thus, despite rumors, Governor Sarah Palin cannot appoint herself to the Senate, but she could run if she was so inclined. This seat might be vacant for several months.
Depending on how these four states break, Democratic Majority Leader Harry Reid could control anywhere from 56 to 60 votes when Congress returns in January.
In the tax-writing Finance Committee, the three Democrats who were up for re-election won easily — Chairman Max Baucus (MT), John Rockefeller (WV), and John Kerry (MA). Of the three Senate Finance Committee Republicans who were up, Senator Pat Roberts (KS) was re-elected with a solid margin, Senator John Sununu (NH) was defeated, and Senator Smith’s race has not yet been called.
The current ratio on Finance is 11 to 10. Given the new make-up of the Senate, expect a new Committee ratio of 12-10 or 12-9, suggesting that one new Democrat will be appointed while the Republican ranks will hold steady or, if Smith loses, add one. Senators Claire McCaskill (D-MO), Ben Cardin (D-MD), George Voinovich (R-OH) and Mike Enzi (R-WY) lead the list of likely additions.
In the House, Speaker Nancy Pelosi has at least 255 votes in her party, with a handful of seats still undecided. If those seats split evenly, then the Democratic-controlled House will have around 40 votes more than the majority of 218, giving them a very strong majority from which to move legislation. For some issues, they may need those extra votes, as the number of moderate Democrats representing conservative districts has grown dramatically. The centrist Blue Dog coalition has 47 current members, and will likely grow to more than 50 before the new Congress arrives.
On the House Ways and Means Committee, all 22 House Democrats running for re-election won. Today, Committee member Rahm Emanuel (D-IL) accepted an offer to serve as President-elect Obama’s Chief of Staff. There are two other vacancies to fill on the Democratic side due to the retirement of Rep. Michael McNulty (NY) and the death of Rep. Stephanie Tubbs Jones (OH) earlier this year. Meanwhile, two Ways and Means Republicans were not re-elected: Reps. Phil English (PA) and Jon Porter (NV). Additionally, six Republican Members of the Committee are retiring at the end of this Congress.
As for the Committee’s makeup, expect the ratio to move from 24-17 to something closer to two-thirds/one-third. Any combination is possible, but 26-13 sounds about right. Despite losing three Committee seats with the new ratio, Republicans still would need to fill four seats while Democrats would have five seats to fill.
Quick Stimulus Update
More on the possible lame-duck stimulus package courtesy of CongressDaily:
House Speaker Pelosi said this afternoon that the economy will be the major topic of discussion when congressional leaders meet with President-elect Obama, but that “even before that we have an economic stimulus package on the table that I hope Republicans in the Senate will allow to be taken up in a lame-duck session.” Pelosi said “those conversations are still taking place with the White House.” When asked whether two separate stimulus packages may be passed, Pelosi said “it depends on what the White House is willing to do.”
Tax Policy and Small Business
Earlier this week, the Wall Street Journal reviewed the most recent comments by Senator Barack Obama regarding his plans for tax policy.
As we noted in the past, the bias is for higher tax rates beginning sometime in the next Congress. This bias stems from the make-up of Congress and the scheduled expiration of the 2001 and 2003 tax cuts and exists regardless of who becomes President.
That said, the S corporation community should pay particular attention to some of the proposals put forward by the Obama campaign – specifically, his plan to raise marginal tax rates on households with incomes above $250,000.
Just how would this hurt S corporations? Critics argue that the number of businesses affected, and the potential economic impact by extension, is small.
But our friends over at American’s for Tax Reform have pointed out that the actual percentage of affected business income is quite large. According to IRS statistics, 80 to 90 percent of all S corporation and partnership income is reported by households with incomes above $200,000.
Combine that statistic with the fact that most business income is taxed at the individual rates, and the potential damage to the economy of raising taxes on these households becomes clear. As the WSJ concludes:
The reality is that the creators of new jobs in the economy are more likely to be rising entrepreneurs or filers under Subchapter S, who typically pay taxes at individual rates. Hanging three or four tax millstones around their productive necks in January if the economy is weak will likely produce unimpressive growth and job numbers in the first year of the new Obama Presidency, and likely beyond. That in turn could drag down the Democrats in Congress who will get credit for voting these higher taxes into law.
So Much to Do, So Little Time
Congress returned this week to a long list of must-pass items, but only a few weeks to get them done and little consensus on how to do them. The list includes:
- Energy
- Tax Extenders
- Appropriations
- Continuing Resolution
- American with Disabilities Act
- Second Stimulus
- Media Shield 1st Amendment Legislation
Given the length and composition of this list — the Media Shield bill alone is worthy of several constitutional conventions — the odds of a lame duck session are growing by the minute.
On the tax front, the stalemate over whether to offset tax relief or not continues. Early this week, House Majority Leader Steny Hoyer (D-MD) took the Senate to task for failing to move on extenders, especially those targeting at renewable energies.
About the same time, Senator Baucus indicated that the Congress may leave for good this year without extending many of the tax provisions that make up the extender package, including the R&E tax credit. He did say that a one-year extension of the AMT patch will likely pass, perhaps as part of the continuing resolution.
Senator Baucus then joined Senator Grassley in introducing a comprehensive, $40 billion package of energy tax provisions, including a three-year extension of the Production Tax Credit.
The plan for both the House and the Senate is to consider comprehensive energy bills early next week, but it’s unclear anything will pass.
All this focus on energy means there’s less time and less attention being paid to the broader tax challenges faced by S corporations and other businesses. If Congress does adjourn permanently prior to the elections, these issues will be waiting for the new Congress when it organizes in January.
Happy 50th, S Corps!
Today marks the 50th birthday of the S corporation! As you can imagine, here at the S Corporation Association we’ve got the cake and candles ready.
Perhaps more importantly, at a time of economic and political uncertainty, the story of the S corporation and its role in making the American economy more diverse and flexible is worth reviewing.
The S corporation was born at a time when the economy was slowing, Americans were losing their jobs, and an unpopular Republican President was being accused of practicing “trickle-down economics” by a Democratic Congress.
President Eisenhower embraced the S corporation — originally an idea proposed by the Truman Treasury Department — as a means of burnishing his Main Street credentials while addressing concerns of Republicans and Democrats alike that too much economic control was being consolidated into the hands of too few wealthy Americans.
Congress passed the provision as a small part of a much larger miscellaneous tax bill and the President signed on September 2, 1958 while on vacation up on Cape Cod.
Over the past fifty years, the S corporation has helped diversify the American economy while becoming an increasingly important player in the lives of millions of Americans.
While the S corporation has always been a successful vehicle for facilitating private enterprise and innovation, its growth accelerated dramatically in the last thirty years as marketing, communication, transportation and other transaction costs for small firms shrank along with the marginal tax rates they paid.
Lower transaction costs means smaller, more diversified firms and a stronger Middle America. Today, there are over four million S corporations, employing millions of workers and contributing significantly to our national income.
As Congress reconvenes next year and considers what to do with the tax code and how to address concerns of economic concentration, it should keep in mind that the S corporation was created by a Democratic Congress intent on countering economic concentration. It worked, as four million businesses spread throughout communities around the country can attest.
Happy 50th, S Corps and many returns!
The Game of LIFO
More movement on the LIFO front. Last week, the Securities and Exchange Commission approved for comment a roadmap to convert US accounting rules for public corporations over to EU rules.
The transition would take place over the next eight years and include numerous steps, including a decision by the SEC in 2011 on whether to proceed, but the bottom line is the accounting community and the people who regulate them are continuing to move away from rules that allow for LIFO accounting.
As S-Corp readers know, a move to eliminate LIFO for book accounting has implications for tax accounting as well, since the tax code requires companies to use the same broad inventory method for both.
While LIFO accounting debates may appear too technical to matter, this issue has the potential to impose a massive tax increase on manufacturers, retailers and wholesalers around the country. A recent revenue estimate for eliminating LIFO suggested it would raise taxes on these businesses by more than $100 billion over the next ten years.
A tax increase that size is bound to be noticed. It threatens a double hit on businesses that would be forced to pay back taxes on accumulated LIFO reserves while also being hit with higher tax levies in future years.
Tax issues were not a major part of the SEC discussion, although the Commissioners are aware of the tie between book and tax accounting on LIFO and suggested maybe the IRS could do something to fix it. Maybe. But, Congress still needs to find revenues over the next couple of years to offset a very expensive agenda of tax relief and spending increases. Whether the IRS comes to the rescue or not, we expect this issue to be debated in Congress beginning next year.
Extender Picture Muddy as Ever
With energy issues on the front lines, a group of 16 Senators has joined together to support a package of energy provisions that includes, well, just about everything — nuclear, drilling, renewables, and an extension of the production tax credit and other energy tax items.
Looking at the past votes on extenders, if you add the Republican members of the Group of Sixteen to the 55 or so Senators who supported the most recent extender package — the one with revenue offsets — Senate Majority Leader Harry Reid now has a roadmap to getting the necessary 60 votes and help take energy issues off the table before the elections.
What does this mean for the broader tax package, including the AMT relief, R&E tax credit and S corporation charitable deduction expansion? It is not entirely clear, but adoption of the very popular production tax credit and other energy tax provisions separately may ease pressure on Reid to move the larger extender bill.
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