In a capital-starved economy, what makes more sense than allowing firms access to their own capital? For one year beginning in 2011, hundreds of thousands of S corporations around the country will be able to do just that, thanks to the efforts of the S Corporation Association and its allies in Congress, particularly Senators Grassley, Lincoln, Hatch, and Snowe and Representatives Kind and Reichert.
On September 27th, President Obama signed into law the Small Business Lending Fund Act of 2010 (HR 5297). Among other business friendly provisions, the bill includes one of the S Corporation Association’s tax priorities, a reduction in the built-in gains holding period. The provision is for 2011 only, but it allows firms that converted as few as five years ago to sell appreciated assets without paying the punitive built-in gains tax.
This success builds on last year’s reduction in the holding period to seven years, and we hope it signals a move towards permanently reducing the holding period below the old ten-year requirement. Ten years is a long time, and in a world where capital is dear, it only makes sense for firms planning new investments to begin by accessing their own capital.
Latest on Tax Outlook
House Speaker Nancy Pelosi (D-CA) has lost control of the tax debate headed into the November elections. Last week, 31 House Democrats signed a letter supporting extending all the individual tax rates, including the top two rates. Then, 47 Democrats wrote Speaker Pelosi calling for keeping dividend and capital gains rates at their current 15 percent. As The Hill reports:
Forty-seven House Democrats have signed a letter calling on Speaker Nancy Pelosi (D-Calif.) to extend the current tax rate on capital gains and dividends. “By keeping dividends and capital gains tax rates linked and low for everyone, we can help the private sector create jobs and allow seniors and middle-class households to save and invest more,” the letter states. Under current law, beginning next year capital gains will be taxed at 20 percent while dividends will be taxed at ordinary income rates that go as high as 39.6 percent.
As a result, a majority of House members now support extending all the current rates, at least temporarily. How is it possible that an issue that’s been 10 years in the making is still unresolved eight weeks before the election? Keith Hennessey has a very good entry on his blog outlining the steps Congress took to get here. As Keith points out:
The sequence of events was:
1. The President picks a big fight on the tax extension and highlights the partisan split;
2. a handful of Senate Democrats signal they’re not onboard; (first warning)
3. the Speaker says “the Senate will go first;” (second warning)
4. the President doubles down on the fight and elevates the conflict by making it the centerpiece of his election-cycle argument;
5. the President’s just-resigned budget director guts the President’s argument in his first New York Times column; (third warning)
6. (same day as #5) the President proposes “new” policies that are ignored by both sides; (confusion reigns)
7. Members return from August recess;
8. 30 House Democrats bail on the President’s position; (final blow)
9. Senate Democrats delay the vote until after the election.
That’s not poor coordination, it’s a total absence of coordination. Going into a highly partisan conflict on the other team’s turf, you either make sure your team is unified first, or when you figure out they’re not, you concede or switch topics quickly. We have seen a strategy and an alliance slowly collapse over a several month period. I don’t understand how the blue team [Democratic] leaders could allow that to happen.
So that’s how we got here. How does the Speaker respond? Last month, we listed the possible outcomes of the rate debate. Congress could:
- Extend all current tax policies (except the estate tax rules) for one or two years;
- Extend just those policies benefiting families making less than $250,000; or
- Do nothing and leave this issue to the next Congress.
The events of the last week have killed option two. There may be a way for the Speaker to move a middle-class-only bill through the House, but we are unable to think of how. There’s talk they may consider the bill under the Suspension Calendar, but suspensions need two-thirds support in order to pass, and the Speaker doesn’t control a simple majority on this issue. Once you lose the majority on an issue in the House, you generally lose.
Option one is becoming increasingly likely, but it would require the Speaker to allow a vote on blocking all the tax hikes when Congress returns in November. She may not control a majority on this issue, but she does control the floor. It would also require an emboldened Republican conference to accept a temporary fix to an issue they probably would like to fight next year.
So while “extending all” is moving up on the options list, we continue to believe the most likely outcome is that this issue will remain unresolved through the end of the year and would be the first order of business for the new Congress.
More on “Big” vs. “Small”
Meanwhile, the debate over how higher rates might impact business continues. On Meet the Press Sunday, Representative Chris Van Hollen (D-MD) made the following point about extending all the tax rates:
They have tried to mask this as an issue with small businesses. Well, it turns out that only 2 percent of small businesses are affected. And when you look at the definition of small businesses, you find that they’re big hedge funds, big Washington lobbying firms, KKR, Pricewaterhouse. Because, under the definition of tax code, anything that’s an S corporation qualifies. So I want Mike to tell us whether he really believes that KKR, whether Pricewaterhouse, whether those are the kind of small businesses that need help? Because that’s the folks that they’re trying to help out.
S-CORP ally and AEI economist Alan Viard warned policymakers about this argument earlier this month. As he wrote in an AEI research piece:
A common argument is that the high-income rate reductions lower taxes on small business. The valid form of this argument, recently explained by Kevin A. Hassett and myself, is that the rate reductions lower marginal tax rates on investment by all firms, including small businesses. Unfortunately, the more common forms of the argument adopt an exclusive focus on small business and obscure the growth implications.
To begin, the argument is often founded on the mistaken premise that small firms are inherently better than large firms, which suggests that the government should interfere with market forces to promote the former over the latter. In a previous Outlook, Amy Roden and I explained that firms of all sizes contribute to national prosperity and demonstrated that small firms do not play a disproportionately large role in job creation. By focusing only on small (more precisely, pass-through) firms, the argument ignores the adverse effect of letting the high-income rate reductions expire on investment by big business. The data cited above suggest that the affected high-income households finance a greater fraction of corporate investment than pass-through investment. The potential tax-rate increase on corporate investment is also larger, at least if the dividend tax cut fully expires.
While in the past we’ve disagreed with Alan on the job creating capabilities of smaller businesses, we agree wholeheartedly with him that allowing the rate debate to devolve into a fight over the size of the businesses affected is simply a distraction. This is a debate about jobs and not raising taxes on employers, regardless of how many people they employ.
On the question of large S corporations, the IRS does a nice job of breaking down the S corporation community by size and industry in its SOI reports. The most recent numbers can be found in the IRS data book while more in-depth figures date back to 2007. Here’s a quick profile we pulled from the numbers:
- There are 4.5 million S corporations (2009);
- The average S corporation has $1.5 million in revenues and $100,000 in income (2007); and
- Assuming a wage of $40,000, the average S corporation has five employees (2007).
These are simple averages, but they provide a general sense of the S corporation world. In terms of revenues, the majority of S corporations can be found in wholesale and retail, followed by construction, manufacturing, and then professional services.
In short, S corporations are large and small. They are active in every industry and in every community, and they provide millions of much-needed jobs to families across the country — even the big ones.
Finance Committee Chairman Max Baucus staked out unique turf yesterday, calling for keeping tax policy stable for middle class taxpayers, allowing rates to rise for taxpayers making more than $250,000, but for taxing capital gains and dividends at 20 percent. As BNA reports:
“I’m going for policy, and I think 20 percent for both capital gains and dividends is the right policy,” Baucus told reporters. Baucus acknowledged that the tax cut would specifically benefit the same $200,000 per year individuals that he has said should not expect to see their ordinary income tax rates cut again for 2011, but said the difference is that capital gains and dividends deserve to be treated the same under the tax code.
For wages and salary income for top-earning taxpayers, Baucus reiterated his position that Congress should focus on permanent tax cuts for only middle-class households and not entertain any temporary extensions of tax cuts for high-income individuals.
In effect, Senator Baucus is pressing for the tax policies outlined in President Obama’s budget. That budget called for taxing dividends at 20 percent, but the rhetorical battle over the past year has allowed that fact to slip aside. As your S corporation advocates, we feel compelled to observe the inconsistency of a policy that would keep (dividend) rates low for C corporation shareholders but would allow rates to go up for S corporation shareholders. Why is one better than the other?
Exactly how all this gets done also is unclear. There may be some effort in the Senate to bring up and pass a Baucus-like bill before the Senate adjourns (probably at the end of next week now), but that effort will likely be wrapped up with strict limits on debate and amendments, and the Republican minority has been successful this Congress blocking such requests.
If the Majority Leader wants to get anything done before the elections, he’ll need to set some time aside and let the Senate work its will. With time so short, we don’t expect that to happen.
S-CORP in Wall Street Journal
With the focus on flow-through businesses and the pending tax hikes, your S-CORP team is getting more press these days. The latest was earlier this week in the Wall Street Journal, where journalist John D. McKinnon quoted S-CORP Executive Director Brian Reardon on a story summarizing the rate debate. As the Journal writes:
Republicans cite studies showing roughly half of all such income would be affected by raising the top two rates. Democrats say only about 3% of households reporting such income account for that half. That suggests much of the income comes from big businesses operating under small-business structures, they say. Businesses affected by the top tax rates include all sorts of concerns, from farms and manufacturers to high-tech and professional firms.
That trend has been under way for years. Congress authorized Subchapter S corporations in 1958 to encourage the growth of small companies. The popularity of pass-through entities grew in the 1980s with the lowering of individual tax rates and other rule changes.
By now, “the vast majority of employers in this country are organized as flow-throughs,” said Brian Reardon, executive director of the S Corporation Association, which represents such companies.
Later, John gets to the heart of the matter:
But the new-found importance of such enterprises-regardless of their size-means raising individual tax rates could have significant economic impacts. This week, Moody’s Economy.com said raising taxes on higher earners would reduce GDP by 0.4 percentage point in 2011, while payroll employment would be 770,000 lower by mid-2012.
As we’ve pointed out before, the debate over tax rates is really a debate about jobs. The current obsession of policymakers over distinctions between small and large businesses or manufacturers verses professional services businesses is really beside the point. There are S corporations and partnerships in all business sectors, and they are all employers.
Following yesterday’s comments by President Obama, the S Corporation Association joined together with more than 30 other business associations to make the case for action by Congress to avoid the massive tax hike on private enterprise looming next year. As the letter states:
Main Street businesses are America’s job creators. They are responsible for 60 percent of the net new jobs created in the last decade. But uncertainty about the economy and looming tax hikes have kept this sector from hiring new workers, resulting in a weak economic recovery and slow to nonexistent job growth. Until Main Street begins to hire, we fear the unemployment rate will remain unacceptably high.
Congress returns next week and the first order of business will be the much-delayed package of small business tax provisions. This legislation is the perfect vehicle for extending the tax rates and Congress should jump at the chance. According to the Joint Committee on Taxation, failure to take action would mean that taxes next year will rise on families and businesses by $227 billion.
Despite the President’s opposition, momentum for extending all the expiring rates appears to be growing. In recent weeks, senators Ben Nelson (D-NE), Kent Conrad (D-ND) and Evan Bayh (D-IN) have all expressed support for extending all of the rates. Meanwhile, former OMB Director Peter Orzag wrote in the New York Times earlier that, given a choice between doing nothing and extending everything next year, Congress should extend everything.
Each of these Senate defections is significant since any effort to extend current tax policy will need 60 votes, and the Democrats only control 59 prior to the elections. As The Hill noted today:
Senate Democrats would need all 59 Democrats and at least one Republican to pass the Obama administration’s plan to extend tax cuts for the middle class while allowing the tax breaks for the highest-income tax brackets to expire. That plan could be a non-starter in the Senate without Nelson’s support, since another GOP vote would be needed for passage.
Moreover, the Democrat’s majority may shrink immediately after the November elections. Three states — Delaware, Illinois, and West Virginia — will immediately seat their new Senators after the elections in November rather than wait until January, which means if any of those seats change parties, support for a full extension would grow.
As before, we continue to believe the most likely outcome is continued stalemate on extending the rates and no action by Congress this year, followed closely by Congress choosing to extend all of the rates for at least a year. Each additional defection, combined with any Republican victories in Delaware, West Virginia, and Illinois, increases the odds that the latter option becomes law.
S-CORP on Fox Business News
S Corporation Association Executive Director Brian Reardon appeared on Fox Business News last week to discuss the Obama Administration’s newest stimulus proposals.
As discussed above, if the Obama Administration wants to see some real stimulus, it should seek to remove the policy uncertainty hanging over the private sector and support extending all of the current tax provisions that either expired last year or are scheduled to expire next year.
While some of the specific tax items offered up — particularly expensing and a permanent R&E tax credit — are attractive to members on both sides of the aisle, finishing the existing “honey-do” list of tax items is more important.
The amount of capital available to the private sector — and currently buried in money market funds and ridiculously low-interest Treasuries — completely dwarfs the $180 billion package proposed by the President, even without the offsetting tax hikes that are planned to accompany the package. Getting that capital off the sidelines is the first step towards helping the job market recover.
After reappearing briefly last week, the latest version of the tax extenders package (Baucus IV) has now disappeared. The plan was for the latest version to garner sufficient support and then be attached to the small business tax bill, but the small business bill was pulled, ending the chances of the extender package getting adopted before the August break.
That means all those tax provisions that expired at the end of last year, including the R&E tax credit and the state sales tax deduction, will have to wait until September at the earliest before getting another shot. That’s too bad, as it now appears the package has the votes to move through the Senate.
As we noted last week, one of the modifications Chairman Baucus made to the package was to eliminate the S corporation payroll tax provision. Dow Jones reported this on Friday:
Senate Finance Committee Chairman Max Baucus (D., Mont.) has removed a controversial proposal that would force lawyers, accountants and other professionals to pay more in payroll taxes from a broader bill to extend expired tax cuts. The payroll tax provision, which would have raised $9 billion to help pay for tax cut extensions, had drawn strong criticism from business advocacy groups and Republicans including Sen. Olympia Snowe (R., Maine).
Coupled with other changes, striking this provision should give Baucus the 60 votes he needs to move forward. We will find out in September.
On the small business bill, negotiations continued over the weekend and there’s a very slight chance the bill could come back up before the end of the week. As CongressDaily reported yesterday:
This week will determine if the chamber passes the small-business bill, which stalled last week in a dispute over amendments. Reid on Thursday urged members to “cool down” over the weekend as aides said they hoped for a deal that would set up a quick series of votes and passage of the bill by Wednesday. Republicans have sought votes on four amendments, while Reid last week offered three. Aides said completion could wait until September if they do not reach a deal, which will have to include Republican agreement to limit debate time.
Majority Leader Reid would also need to find extra time in a very crowded week. He intends to take up three other controversial matters before Friday — the Kagan nomination, extra money for states under FMAP, and competing energy bills designed to respond to the Gulf oil spill. All of these items will likely be debated at length, so fitting in yet another bill would be a challenge. With the tight calendar, we’re expecting this issue to get kicked into September as well.
Small Business and 1099 Reporting
Some good news on the small business paperwork front: a majority of House members support repealing from the health reform bill the 1099 reporting requirement that has the small business community up in arms. CNN Money has a nice summary of what’s at stake:
Right now, the IRS Form 1099 is used to document income for individual workers other than wages and salaries. Freelancers receive them each year from their clients, and businesses issue them to the independent contractors they hire.
But under the new rules, if a freelance designer buys a new iMac from the Apple Store, they’ll have to send Apple a 1099. A laundromat that buys soap each week from a local distributor will have to send the supplier a 1099 at the end of the year tallying up their purchases.
The bill makes two key changes to how 1099s are used. First, it expands their scope by using them to track payments not only for services but also for tangible goods. Plus, it requires that 1099s be issued not just to individuals, but also to corporations.
Taken together, the two seemingly small changes will require millions of additional forms to be sent out.
One item that caught our eye was the revenue estimate. The Joint Committee on Taxation believes repealing this paperwork mandate would reduce revenue collections by $2 billion per year! Since filing 1099s does not increase tax levies by itself, the JCT is assuming the IRS will be able to use the payment information to increase enforcement and collections. We’re skeptical. It’s just as likely that collecting, organizing, and putting to use the millions (billions?) of new 1099s would cost the federal government more than it saves.
But back to the good news. Last Thursday, House leadership pulled legislation from the House floor rather than lose a vote on repealing this 1099 requirement. Then on Friday, leadership attempted to adopt this provision with $20 billion in offsetting tax hikes, but failed again to garner the requisite votes. Apparently a sufficient number of House members recognized that trading a poorly-conceived paperwork mandate for higher taxes was not in fact a good bargain and should be rejected.
So there’s hope yet for the small business community. A majority of House members recognizes that imposing yet another paperwork requirement on Main Street businesses is a bad idea and should be repealed. Let’s hope House leadership listens to its members and lets them vote on a clean repeal.
More on Extending Tax Rates
The debate over extending tax rates also is getting kicked into September, but the rhetorical battle is heating up now. The Washington Post in particular is staking out the “let’s tax the rich” position. The paper’s online “Research Desk” feature highlighted the following question from reader Ross Cohen:
Republicans keep fighting for the Bush tax cuts with a talking point about small business owners filing as individuals. I’ve heard 50 and 75% quoted as the number of $250k filers that are actually small businesses. Any truth to this? It seems to be their strongest case against letting the cuts expire.
Post researcher Dylan Matthews responds:
As far as I can tell, this argument originated with Grover Norquist in this column. Norquist cites IRS data to say that two-thirds of income from sole proprietorships, partnerships and S corporations was reported by filers making over $250,000 a year. Although true, this is almost totally irrelevant. Norquist looks at the proportion of income, not filers, which inevitably results in a bigger portion for high-earners.
Really? The only source the Post researcher could find was Grover Norquist? We agree with Grover on this issue and many others, but he does tend to be a lightning rod. Had Ross asked S-CORP his question, here are a couple citations we would have provided him with:
The Joint Committee on Taxation projects that $1 trillion in business income will be reported on the individual income tax returns in 2011. Notably, of that $1 trillion, nearly one-half, $470 billion, will be reported on returns that will be subject to the top two rates of 36 percent and 39.6 percent if EGTRRA and JGTRRA are allowed to sunset.
Top bracket taxpayers received a disproportionate share of flow-through business income and paid an even larger share of the tax on it; taxpayers in the highest two tax brackets made up 8 percent of all taxpayers receiving any flow-through income or loss, but they received 72 percent of the net flow-through income and paid 82 percent of the taxes on this flow-through income (Table 3.3).
The Joint Committee on Taxation and the United States Treasury are good sources, no? Moreover, how many of our Washington Wire readers noticed that Dylan misread the question? The question asked what percentage of high-rate taxpayers own small businesses. There’s a lot of good data out there, too, including this one:
Because flow-through income is concentrated in the top tax brackets, the reductions enacted in 2001 and 2003 in the highest two marginal income tax rates have important consequences for the recipients of this income – typically owners of small and entrepreneurial businesses. For 2007, the Treasury Department estimates that about 75 percent of the taxpayers who will benefit from lowering the top rate from 39.6 percent to 35 percent are flow-through business owners, and that 84 percent of the tax reduction from the top rate reduction will go to flow-through business owners.
So, to summarize: yes, Ross, it is true that small businesses are overrepresented among taxpayers who pay the top two income tax rates, and those businesses will see their tax rates go up under the pending tax increases.
Finally, why is it irrelevant that a large percentage of business income — somewhere between one-quarter and one-third of all business income — is taxed at the top two rates? From our perspective, that is the heart of the issue. If a single taxpayer is responsible for a large amount of economic activity and employment, raising his or her taxes in the middle of a weak recovery makes little sense.
As the Tax Foundation noted several years ago:
So why should we pay attention to the way our tax code treats small businesses? They are an important source of innovation and risk-taking, creating between 60 and 80 percent of net new jobs, employing over half the labor force, and generating more than one half of the nation’s gross domestic product. Higher income tax rates reduce the investment spending of entrepreneurs and the likelihood that they invest at all, discouraging the growth or expansion of small businesses.
It’s July 14th, 2010. There are approximately 30 legislative days before the fall elections and less than six months before huge portions of the tax code expire, so it’s only appropriate that today, the Senate Finance Committee held the first substantive hearing on the implications of allowing the Bush tax cuts to expire. Some key points:
- Chairman Max Baucus (D-MT) clearly takes a dim view of flow-through taxation for certain firms and appears dismissive of arguments that higher rates will hurt the business community and employment. Washington Wire readers are encouraged to watch the hearing and see for themselves, but it’s obvious that we have lots of work to do in defending the basic S corporation structure.
- Dr. Doug Holtz-Eakin alone made the point that as long as federal spending was too high — well above historic norms already, with the explosion in entitlement spending still before us — and until it is addressed, tax policy is going to be an exercise in second-best options.
In one “laugh out loud” moment, Professor Len Burman pointed out that higher tax rates may increase entrepreneurship because business owners have access to more deductions. In other words, let’s raise taxes because that will encourage taxpayers to come up with novel ways to avoid paying them? Being entrepreneurial in your tax avoidance is not the sort of entrepreneurship we’re looking for here.
Perhaps the best point of the hearing was made by S-CORP ally Dr. Holtz-Eakin, who, in a back-and-forth with Chairman Baucus, made the case for flow-through taxation as cogently as anybody to date. Boiled down, his point is that because individuals pay all business taxes anyway, it makes good policy sense to tax business income at the individual rates directly.
So what to conclude? The list of witnesses and tone of the majority–especially the Chairman’s–suggest this hearing was designed to lay the policy predicate for higher rates next year. What’s unclear is exactly which taxes the Committee plans to raise. Despite what you might read, most of the Bush tax cuts enacted in 2001 and 2003 went to middle- and low-income Americans, not the rich. So the pending tax hike is going to impact regular families in a very real and harmful way. With just 30 days of legislative session left before the elections, even a well intentioned effort to extend those tax policies may fall short.
Perhaps more importantly, the hearing demonstrated the lack of a plan for what happens beyond 2010. Even if Congress extends some or all of the 2001 and 2003 tax cuts, something more comprehensive is needed if the United States is not to follow Greece down the path towards the third world. Senators Ron Wyden (D-OR) and Judd Gregg (R-NH) have introduced what they describe as a budget neutral tax reform plan. In the absence of any other ideas, it might be worth a look to see what they propose.
Estate Tax Fix Introduced in Senate
In more tax news, Senators Jon Kyl (R-AZ) and Blanche Lincoln (D-AR) yesterday evening introduced an amendment to make permanent changes to the estate tax. As the entire tax world knows, the estate tax is taking a one-year hiatus in 2010 before returning in 2011 with a top rate of 55 percent and an exclusion of $1 million.
This dramatic shift, from a regime that applies a capital gains tax on inherited assets when they are sold to a very high 55 percent rate imposed at the death of the estate’s principal is possibly the largest marginal rate hike in history and is giving estates and estate planners alike a very real case of whiplash. Nobody predicted we would be in this situation a year ago, and the uncertainty is having a very real impact on how folks are behaving.
The Lincoln-Kyl proposal is designed to mitigate this harm and uncertainty by making permanent a middle ground on taxing estates. Key provisions in the bill include:
- Reducing the top estate tax rate to 35 percent;
- Increasing the exclusion from $1 million to $3.5 million; and
- Allowing the estates of deceased taxpayers to choose between no estate tax and limited “carryover basis” or the provisions included in this plan for 2010.
Missing from the proposal are any revenue increases or spending cuts to offset the revenue loss of the lower rates and higher exclusion. The selective pay-go rules adopted by Congress earlier this year allowed Congress to extend 2009 estate tax rules without offsets, but any reduction in the estate tax beyond that would have to be offset or face a 60 vote Budget Act point of order. Filling this revenue hole, which has been estimated in the $50-$75 billion range over ten years, has been a significant challenge for the Lincoln-Kyl team, and it appears it still is unresolved.
While the Lincoln-Kyl proposal is targeted at the pending small business bill, it is unclear whether they will get a clean vote on the issue. Majority Leader Reid has filled the so-called amendment tree and is taking other steps necessary to limiting changes to the underlying bill. Regardless, the introduction of this legislation is the first substantive effort in the Senate to enact a permanent estate tax fix, which is progress. The question now is whether there’s enough time in the legislative calendar for this debate to play out. Stay tuned.
The tax community is still waiting for the third version of the Baucus substitute to be released. A “trial balloon” draft circulated yesterday made certain changes, but failed to address many of the sticking points holding up the overall bill.
Meanwhile, Senators Baucus and Reid spent most of yesterday negotiating with swing Republican votes — at this point, just Maine Republican Senators Olympia Snowe and Susan Collins — to identify what changes are necessary in order to gain the 59th and 60th votes needed. As CongressDaily reports:
The chief target appears to be $24 billion to extend higher Medicaid matching funds for six months, first authorized in the stimulus last year. Options floated Tuesday included phasing down the percentage boost and using untapped funds elsewhere in the Recovery Act for offsets. Snowe and Collins were noncommittal, having not seen details. Senior Democrats appeared resigned that the net cost of the Medicaid assistance would be scaled back. “They’re having to cut it back to try to get Republican votes, and it affects my state; it really affects Harry Reid’s state,” said Sen. John (Jay) Rockefeller, D-W.Va., who with Reid was an original lead Senate sponsor of the six-month Medicaid boost. “But it looks like the best we can get.”
The challenge for Senator Baucus is that the deficit spending in the package represents only half the opposition. There is a lot of opposition to the tax increases as well, including the payroll tax hike on S corporations and partnerships. Senator Snowe of Maine has led the fight to strike this provision from the bill. As The Hill notes:
Kyl said he isn’t sure winding down FMAP is the elixir Democrats think it is in garnering Republican support for the bill.“Whether that will satisfy more Republicans remains to be seen,” he said. “There are other issues with the bill as well, including issues related to the tax provisions.”
The current “K Street” rumor is that Chairman Baucus has been given a limited amount of time to round up the 60th vote. If he’s unable to do so, Majority Leader Reid would set the extender package aside and move on to other items. Whether the rumor is true or not (K Street rumors typically run about 50/50 on the accuracy dial), the clock is ticking.
In addition to Senate consideration, this bill would need to return to the House, where its adoption is by no means assured. If the House makes any changes, it would come back to the Senate. And then, since most of the spending and all the tax items expire before the end of 2010, we’d have to do it all over again before January.
We’ve observed previously that getting the entire business community to oppose a bill centered on extending business-friendly tax breaks is fairly remarkable. The current bill before the Senate is anti-business, and would need to be changed significantly before businesses could support it. It appears that several determined senators share those concerns.
Budget’s Impact on Employers
S-Corp allies over at the Manufacturer’s Alliance commissioned a new study on next year’s tax policy and what it means for S corporations and other business forms. Specifically, the study looked at the tax policies in President Obama’s 2011 budget and asked how these policies would impact economic growth and job creation. The verdict?
In terms of macroeconomic effects, the tax proposals in the 2011 budget are forecast to shave an average of 0.2 percent from annual GDP growth through the middle of the decade, resulting in $200 billion of foregone output and a net job loss of almost 500,000 relative to the baseline. Because taxable business revenues are highly concentrated in manufacturing firms, they will account for a disproportionate share of these output and employment gaps.
So despite much of the rhetoric coming from Washington these days, the rules of economics have not been turned on their figurative heads — the tax forecast for next year is higher tax rates imposed on a larger tax base, which means less investment and less job creation over time. Who will get hit the hardest?
The tax provisions of the 2011 budget will affect S corporations and other pass-through manufacturing firms much more heavily than both firms outside of manufacturing and C corporations within manufacturing. Pass-through businesses in the manufacturing sector will see their tax bills increase by an average of 14 percent. Given the growing importance of S corporations and partnerships to economic growth and job creation over the past 25 years, it is important to understand that tax increases intended to help contain deficits will exact a high price in terms of the competitive posture of U.S. manufacturing and the growth of the economy as a whole.
The study’s authors calculate that S corporations and other “pass through” firms will see their aggregate tax burden rise by $177 billion over the next ten years. Ouch.
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.
Two weeks ago, the Senate Finance Committee released its summary of options to pay for health care reform. As expected, the list was long and could be divided up any number of ways. One item missing from the list, however, is a source of revenue folks are talking about for health care reform and other spending priorities too — a value added tax (VAT).
The Finance Committee summary followed the release of papers on improving health care delivery and expanding coverage. The key to all three papers is that, while they give the reader a sense of where the Committee is headed, the exact plan remains shaded by options and generalities. So are the costs.
Exactly how much will health care reform cost? Some advocates — including the Obama Administration’s top economists — argue that a properly structured plan would save the taxpayer money, but that’s mere rhetoric. Expanding health care coverage to more Americans will cost money. Lots of it.
That’s why President Obama’s budget set aside $326 billion in tax increases to help pay for health care reform, but that may not be enough. Most observers believe the ultimate price tag will be several times higher while many of President Obama’s proposed pay-fors are simply non-starters with Congress. Enter the latest idea of a pay-for — the value-added tax. The Washington Post reported last week:
With budget deficits soaring and President Obama pushing a trillion-dollar plus expansion of health coverage, Some Washington policymakers are taking a fresh look at a money-making idea long considered politically taboo: a national sales tax… A recent flurry of books and papers on the subject is attracting genuine, if furtive, interest in Congress. And last month, after wrestling with the White House over the massive deficits projected under Obama’s policies, the chairman of the Senate Budget Committee declared that a VAT should be part of the debate.
The story points out that, in addition to several well-placed congressional advocates, there are a few folks within the Obama Administration who support a VAT, such as Office of Management and Budget health advisor Ezekiel Emanuel (who also happens to be White House Chief of Staff Rahm Emanuel’s brother).
While this proposal is clearly far from becoming a reality, it is indicative of just how hungry Washington is for money these days that perhaps the most feared of all taxes — the VAT — is being floated as a possible revenue source.
How Progressive is Progressive?
The American economy is remarkably dynamic, with a large percentage of folks moving from one income group to another every couple years. This movement is often the product of life-cycle earnings, where workers earn little when they start out and then slowly increase their incomes until they reach their peak earnings years of around 40 to 65.
It stands to reason that mature job-creating businesses are highly profitable too. If they are structured as S corporations, then their income is subject to the effective tax rates illustrated above. Something to think about as the unemployment rates approaches 10 percent.
Canada Runs Surpluses
Who knew Canada was running surpluses these days? How did they do it?
First, they cut spending at the Federal level from more than half of their national income to less than 40 percent. That, in turn, produced budget surpluses that were used to pay down their national debt.
What’s the lesson here for S corporations? While Congress and the new Administration search the tax code for new revenues to offset new spending and reduce the deficit, the experience of Canada and others demonstrates that deficit reduction begins with spending restraint — not tax increases.
Both the House and the Senate completed their respective budget resolutions last week. The plan now is for the two bodies to get together to resolve any differences and produce a single budget in the form of a conference report. We expect most of those discussions to take place over the next couple of weeks.
One of the key questions for budget conferees is whether or not they will include reconciliation instructions for health care reform and climate change. As S-CORP readers know, the virtue of reconciliation is that it lowers the bar to pass something in the Senate from a 60 vote supermajority to just a basic majority (in this case, half of those present and voting plus Vice President Biden).
As has been noted, currently the Senate budget does not include reconciliation instructions at all while the House included them for health care and education only. This lack of instructions does not mean the Senate leadership had decided to forego reconciliation. Instead, most observers believe they were intent on pursuing a conference strategy whereby the House reconciliation instructions would be expanded to also include the Senate.
By adding the instructions at the last moment in conference, Senate leadership avoids an ugly floor battle on all of these issues. Instead, senators would be given one vote — up or down — on the conference report as a whole without the ability to make any changes.
Floor action last week, however, threw a big monkey wrench into that plan, at least as far as climate change is concerned. On Wednesday, the Senate voted 67-31 to support Senator Mike Johanns’ (R-NE) amendment. The amendment reads:
Section 202 is amended by inserting at the end the following: “(c) The Chairman of the Senate Committee on the Budget shall not revise the allocations in this resolution if the legislation provided for in subsections (a) or (b) is reported from any committee pursuant to section 310 of the Congressional Budget Act of 1974.”
In effect, the Johanns’ amendment is a statement that the Senate should not use reconciliation for climate change legislation. While the provision itself could easily be dropped in conference and reconciliation instructions added in its place, that change would still face the 67 senators who by all appearances are opposed to using this process to consider cap and trade, at least this year.
All the more reason for S-CORP readers to expect health care reform – rather than climate change – to be the first major reform item considered by Congress this year.
Estate Tax Votes
Lots of Senate activity on the estate tax front as well. The underlying budget resolution produced by the Budget Committee assumes Congress would extend 2009 estate tax rules for 2010 and beyond.
That means the top tax rate on estates would hold at 45 percent and the exclusion would be $3.5 million per spouse. That’s a definite improvement over where we started in 2001, with a top rate of 55 percent and an exclusion of $1 million per spouse, but its step back from the one-year repeal currently scheduled to take effect in 2010.
To make the pending compromise a little better, S-CORP ally Senator Blanche Lincoln (D-AR) offered an amendment to allow the Finance Committee to consider a deficit-neutral alternative with a 35 percent top rate and a $5 million per spouse exclusion. The S Corporation Association joined a long list of business groups in support of the effort. That amendment was adopted by the Senate, 51-48 with all Republicans and 10 Democrats voting in support, including Finance Chairman Max Baucus.
What followed then was a classic “what just happened?” moment when the Senate also adopted, 56-43, an amendment by Senator Dick Durbin (D-IL) to create a point of order against any additional estate tax relief (beyond the underlying resolution) that doesn’t include an equal amount of tax relief for families making less than $100,000.
It is possible to support both middle-class tax relief and estate tax relief, so exactly what the implications the Durbin amendment has for future estate tax legislation is unclear. For the moment, we’ll focus on the positive, which is that a majority of the United States Senate is now on record supporting an estate tax deal that is better than the 2009 rules. Given the current leadership in Congress, that may be as good as we’re going to do.
SBA on Effective Tax Rates
Anybody involved in tax policy for a reasonable period of time will pick up on the prejudice of some policymakers and folks at the IRS that S corporations tend to under-pay their taxes. Over the years, the S corporation has been described by some as “tax avoidance schemes” and worse.
Given that background, the findings from a new report commissioned by our friends at the Small Business Administration (SBA) might surprise you. Of the four core business types — C corporation, S corporation, Partnership, and Sole Proprietorship — which one pays the highest effective tax rate?
S corporations! By a lot.
The research, conducted by Quantria Strategies for the SBA, looked at a broad sample of firms with under $10 million in gross receipts and found that S corporations pay a significantly higher effective tax rate than C corporations, partnerships, or sole proprietorships.
Average Effective Federal Income
Tax Rates by Legal Form of Organization, 2004
Entity Type Rate (%)
Sole Proprietorship 13.3
Small Partnership 23.6
Small S Corporation 26.9
Small C Corporation 17.5
All Small Business 19.8
Source: Quantria Strategies LLC
To be fair, the effective tax rate for C corporations does not include taxes paid by shareholders on dividends and capital gains. As the researchers note:
… the effective tax rate analysis does not capture the taxes paid by C corporation owners on dividends and capital gains. This will tend to understate somewhat the total effective tax rate of small businesses organized as C corporations, but this bias will tend to be small, particularly because of the fairly low rates of tax currently applicable to individual dividends and capital gains.
So even with the shareholder level tax included, the research suggests that S corporations may shoulder the highest effective rate of any business type.
What’s the source of the higher tax burden? After all, the tax treatment of S corporations at the federal level is mirrored on the tax treatment of partnerships. One possibility is that S corporations may tend to be older, more mature companies that were organized before the emergence of the Limited Liability Company.
Whatever the underlying reason, if your operating premise is that S corporations have a significantly lower tax burden than comparable businesses structured as partnerships or C corporations, you might want to think again.
Jobs and Trade
Our friends at the Kaufman Foundation have a great site devoted to entrepreneurship called growthology that’s worth a look. The site is heavy on the high-tech side of growth, but it’s a great window into how the internet and entrepreneurship are combining to form an incredibly potent partnership.
What caught our eye this month was a new survey of economic bloggers on the best sources of job creation in the economy. “Economic Growth” was number one — no news there — while free trade was well down the list. Your S-CORP team finds that strangely disturbing. If anybody should understand the critical importance of open borders to continued economic growth, it’s economists who use the internet to circulate their writing. What is the internet, after all, but one big open border of products and ideas? Maybe it was just how the questions were worded, but this tepid response on the importance of free trade is one more reason to fear for the future of global commerce.
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.”