Tax reform and the law of unintended consequences
With the release late Friday afternoon of the conference committee report, the final shape of the Republican tax reform bill is clear, and it would seem that almost the only remaining question is whether it will pass in both the Senate and the House in the coming week.
But while having the final bill to consider is enormously helpful to accountants and tax preparers who have been hoping to begin answering client questions and start up year-end planning (for highlights of the bill, see “Congress’ final proposal on tax reform”), there will remain all the hurdles of implementing such a wide-ranging piece of legislation, figuring out its long-term implications for clients – and dealing with what will undoubtedly be a host of unexpected complications.
“Any major legislation brings with it the potential for unintended consequences and the tax bill we expect to see finalized soon is no exception,” American Institute of CPAs president and CEO Barry Melancon said in a statement released on Friday morning, before the final conference bill was released.
Melancon’s comments came specifically in the context of concerns about the potential disadvantageous treatment of the income of service firms, but they’re equally applicable to the bill as a whole.
Assuming the bill is passed, it will still need to be implemented, with guidance issued on its more complex provisions and corrections made to any unintended contradictions.
“There are two procedural issues that are currently under-reported in coverage of the tax bill,” said Stuart Gibson, counsel at Washington, D.C.-based Schiff Hardin and former senior litigator in the Tax Division of the Department of Justice. ”First, there will be technical corrections -- a lot of them -- on the bill. There's no way they’ve got everything right. They're drafting this on the fly."
“Second, the tax bill lets Trump keep his ‘Two for One’ executive order [under which two regulations must be removed for every new regulation that is added]. One reason they got rid of all of the deductions on the individual side is to free up space. To comply with the two regs out for each new reg, all the rules around individual deductions will go away. The IRS will need to issue new regs around specific issues. For example, there's a huge anti-base erosion provision in the tax bill and new regs will be needed to interpret them. This bill lets Treasury comply with the January executive order. Congress is doing all of the heavy lifting."
“The bill doubles the estate tax exemption but that will sunset in eight years,” Johnson added. “That makes it difficult for the wealthy to plan when they don’t know if it will go back to the current exemption.”
While it is normal for a major tax bill to beget a technical corrections act, the speed with which this one was drafted, plus the last-minute changes, almost certainly will require voluminous legislative language to correct its mistakes. And although the IRS may comply with the Trump two-for-one mandate, expect the regulations explaining the law’s requirements to be voluminous. For example, the measure in the 21st Century Cures Act that allows small employers to reimburse their employees’ health insurance took one page of legislative language, but it took 59 pages for the IRS to set out the requirements that must be met.
And it may take a while for a technical corrections bill to see daylight, given the polarized positions of both parties.
“When you have huge pieces of legislation you expect a technical corrections act to come back and fix things,” said Roger Harris, president of Padgett Business Services. “But with bills that are this political – the Democrats on health care, and the Republicans on tax reform – it’s harder to get those done. They want to leave the other party hanging out there with the problem.”
A separate problem surrounds getting the tax authorities up to speed on the changes. As early as the beginning of November, outgoing Internal Revenue Service Commissioner John Koskinen warned that the service did not have the budget and staff to handle retroactive changes to the Tax Code – and would probably need extra resources even for prospective changes. “Our hope would be that if you’re going to make major changes and affect the system, which causes us to make major changes in information technology, that will come with a recognition that we can’t do it with the workforce we have now,” he said.
“I think the IRS is going to have a herculean task to try and incorporate these changes into both forms and publications,” said Bill Smith, managing director of the National Tax Office of CBIZ MHM. “On the other hand, for the most part it’s not really a 2017 tax year issue, so … they should have time to deal with it because they’re not making that many changes that will affect 2017.”
Michael Cohn also contributed to this article.