The prospects for tax reform in an incoming Trump administration with a Republican-dominated Congress appear more likely, but that’s assuming Congress will be able to get over its traditional dysfunction.
Dustin Stamper, director in Grant Thornton’s Washington National Tax Office, said his firm is getting inundated with calls from clients about what’s next. “The election was a huge surprise for a lot of folks,” he told Accounting Today. “It certainly increases the chances for tax reform happening in the next couple of years. The prospects for tax reform got a big boost. But we’ve been trying to tell folks to pause, catch your breath and wait a bit before getting too excited about anything.”
It’s easy to see why tax reform might have an easier chance now that Republicans are controlling all the major levers of power at this point, but there are also plenty of reasons to be cautious, he noted. “There are a lot of things that we just don’t know at this point,” said Stamper. “We certainly know what the starting point is for where the tax platforms are right now. We don’t know where the ending point is.”
Trump has advocated for lowering taxes, with a large proportion of the cuts going toward the wealthy. His plan differs in some important respects from that of the House Republicans, however.
“The general idea behind the tax reform plan is to kind of lower individual rates and business rates, with the trade-off that you would have to give up some of your more targeted tax incentives,” said Stamper. “Both the plan from House Republicans and the Trump plan envision this difference between the top individual rate and the top corporate rate, whereas tax reform plans were sort of looking to reduce those rates in lockstep. Now there would potentially be a corporate rate that would be lower than the individual rate.”
That could be a problem for pass-through businesses, such as partnerships, however. “Eight out of every 10 businesses are organized as a pass-through, and their income is taxed at the individual level,” said Stamper. “So one of the big keys if we get business reform is, what are Republicans going to plan to do with the income of pass-throughs? Both the platforms at this point have special rates lower than what the top individual rate would be. They would apply to pass-through income.”
Trump has backed a repeal of the estate tax, but Stamper believes the GOP tax reform plan will need to do more for middle-income taxpayers. “A lot of the focus on tax reform for the last couple of years has been on what do we do about the corporate rate and making our U.S. multinationals more competitive,” said Stamper. “A lot of the tax reform plan has been focused on investment income rates, multinational income rates, and things like the estate tax [repeal], which has long been part of the Republican platform, but there hasn’t been as much talk about some of the meat and potatoes tax issues for the middle-income Rust Belt folks that were largely responsible for turning the election in Trump’s favor. Republicans might need to pivot at some point to provide a little bit more in their tax platforms for that middle-income level, if they plan to satisfy their base.”
Trump has also talked about allowing multinational corporations to repatriate the trillions of dollars in profits they are holding abroad and bring the money back to the U.S. at lower tax rates.
“I think this is one of the few areas we’ve told folks that they can really start implementing into their planning now,” said Stamper. “For the most part, we’ve said: here are some of the hurdles to reform. Don’t get too excited and don’t do anything with your tax planning now, but if we do get tax reform, one of the big things that would be expected to be included would be a mandatory repatriation tax on your offshore earnings.”
He sees pluses and minuses to that. “Number one, all offshore organizations would be subject to taxes if you invested overseas and didn’t plan to bring it back,” said Stamper. “On the flip side there would be a much reduced rate. If you’re thinking of bringing back offshore income now, it’s one of the areas where you might say, hey, the prospects for them doing something to that rate have changed. Maybe we wait and see what happens first because that offshore income could be subject to a much lower rate if we wait for reform.”
The estate tax repeal is also not a guarantee. “I think there are some hurdles still to estate tax repeal, but certainly the prospects have improved,” said Stamper. “I don’t think anyone should be stopping their estate tax planning now. Republicans took a crack at repealing the estate tax in 2001 and 2003. We got only one year of it in 2010, so it was a big mistake for anybody who had stopped estate planning at that point. People who are potentially subject to the estate tax should still be putting some of those plans into place. The one area where you would say pause and wait and see if we get estate and gift tax repeal is to maybe not implement transfer tax strategies that involve paying gift tax. There are certain strategies that use your estate and gift tax exemption, and there are certain strategies that involve you paying a little bit of gift tax. For the strategies that involve you paying a little bit of gift tax, you might want to wait on those to see how the prospects for estate and gift tax repeal develop.”
Republicans have also advocated for repealing the alternative minimum tax. “Certainly one of the top things would be repealing the AMT, if they are able to achieve tax reform,” said Stamper. “You’re talking AMT on both the corporate and the individual side. But interestingly on the corporate side the House Republican platform says they plan on repealing the AMT, but one of the biggest AMT preferences is that you can only use 90 percent of your net operating losses against income, and Republicans want to preserve that restriction. So on one hand they’re saying yes, we’re going to get rid of the corporate AMT, but on the other hand one of the big effects of the AMT on the corporate side they are proposing to keep.”
Trump has also called for giving tax breaks to help families better afford caregivers such as for childcare and eldercare. But Stamper is more skeptical about the prospects for reform there.
“Certainly you see with a lot of tax campaign platforms, a lot of promises are made that are meant more for the campaign trail,” he said. “I definitely think that if they do tax reform they are going to have put in some meat and potatoes for middle-income and low-income folks, so some of those proposals could certainly come up. I wouldn’t necessarily expect them to be implemented in the exact same way that they were promised in the campaign. Campaign tax platforms on both sides of the aisle historically are always kind of a statement of goals. When you get down to writing the legislative text of these things, it’s often Congress taking the lead. Technical issues come up that make you change what you do. Cost constraints that you weren’t necessarily worrying about when you made promises on the campaign trail come into effect so it’s very hard to say at this point with how early it is exactly how those proposals will evolve. But certainly I think if any tax reform is going to succeed it really does have to have some of those items for the working middle class and even low-income folks.”
He is similarly skeptical about the prospects for an end to the carried interest tax break for hedge fund managers and private equity firm partners.
“Carried interest is one that’s had a target on its back for a whole long time,” said Stamper. “I am one of the more skeptical policy watchers on that provision ever going away. I remember when Democrats were in charge, and they were only negotiating against themselves. They had 60 votes in the Senate and they made a real big effort to get rid of the current tax treatment of carried interest, and ultimately failed. When the carried interest lobby steps up and gets louder on that issue it’s very hard to move forward. It’s one of these tax revenue raisers that’s always going to be on the table and always discussed and is never going to go away. But actually pushing it through becomes very hard.”
He pointed out that Sen. Chuck Schumer, D-N.Y., is expected to become the top Democrat in the Senate in 2017 as Senate Minority Leader. “For a long time he has quietly opposed efforts to change the taxation of carried interest because obviously there is a big constituency in New York that enjoys it,” said Stamper. “Also, even though Trump has personally called in his campaign for changing how carried interest is taxed, Republicans in Congress have generally opposed changes, so it’s one of the places where Republicans in Congress and Trump really break. Certainly to the extent where they need revenue raisers for some of the other tax things they want to do it’s on the table, but I expect the battle will be fierce. I wouldn’t consider it dead at this point certainly.”
There are other reasons to be skeptical about large-scale tax reform in general, including the cost constraints and the widening budget deficit.
“There are certainly practical and political considerations with how much you can cut taxes and put it on the country’s credit card,” said Stamper. “A lot of comparisons have been made about when Bush was elected in 2000. Republicans controlled the House and Senate in a similar way and they got huge tax cuts done. But remember, we were working under projected budget surpluses at that point. Right now, we’re working under huge deficits so when you look at some of these tax proposals, economists from both the right and the left have shown the House Republican plan and the Trump plan would cost a lot of money. Doing big initiatives is hard and involves political blowback. You see the political price that Democrats paid for pushing Obamacare. Pushing through big tax cuts that cost a lot of money when over half of the popular vote didn’t vote for the President can have serious political consequences, so Republicans are really going to have to weigh some of the political considerations here, see how much they can really fit into a tax bill, and see what kind of a revenue score they get from Congress’s official scorekeepers on the dynamic effect. But as the tax platforms are currently laid out, I think cost is one of the big hurdles that they’re going to have to face.”
Another hurdle in the way of tax reform will be the need to get 60 votes in the Senate to overcome expected filibusters. “It is just very hard to get anything done in the Senate unless you have 60 votes,” said Stamper. “Republicans have a real decision to make whether they want to try to do something bipartisan with Democrats, in which their plans will have to shift to get those votes on board, or whether they want to go through reconciliation, and reconciliation has some real drawbacks. Number one, you can’t do anything outside of the 10-year budget window, so if they pass a big tax bill through reconciliation, it will have to be set to expire sometime in the next 10 years. When they did that in 2001, you saw how much of what they accomplished in those tax bills eventually got rolled back in 2010. That might make them reluctant to use that again.”
He also pointed to issues with how often a budget reconciliation maneuver can be used to overcome the filibuster threat. “There are some real timing issues there in that generally you can only use reconciliation once a year, so you would have to choose in your first year between health care and tax reform,” said Stamper. “There may be some procedural things they can do to stuff both things in, but it’s very difficult. Anytime any Republican in Congress or what’s going to be the new administration opens their mouth it changes, because they don’t exactly know what they want to do at this point, so there are lots of different ways this could go. We know where they’re starting from, but we don’t know where they’re going to end up. Take a deep breath. Let’s wait and see.”