Obama’s final budget contains far-reaching tax proposals and key changes to health law
Obama’s final budget contains far-reaching tax proposals and key changes to health law
On February 9, the President released his federal budget proposals for the 2017 fiscal year. The Treasury Department’s “General Explanations of the Administration’s Fiscal Year 2017 Revenue Proposals” (the so-called “Green Book”) was released later that day. New proposals in the budget include dramatically altering the way capital gains are taxed, largely eliminating “stepped up” basis, modifying two key provisions in the Affordable Care Act, and providing a number of incentives to encourage retirement savings and expand access to savings programs. Although many of these proposals are unlikely to become law, the budget nonetheless is a strong policy statement that may well influence the tone and direction of the coming tax debate in the presidential election, both in respect to politicians who generally align themselves with his objectives and those who vehemently disagree with them.
The process for passing a budget generally begins with the President submitting a comprehensive detailed budget request to Congress. Then, House and Senate Budget Committees typically hold hearings on the President’s budget request, inviting White House officials to testify (which the chairman of the respective Committees have decided not to do this year), then pass their own respective budgets, which are in turn negotiated by the full House and Senate before passage of a single congressional budget resolution. The budget resolution is then the basis of annual appropriation bills.
For the 2017 fiscal year (i.e., starting Oct. 1, 2016), spending levels have already been set by the Bipartisan Budget Act of 2015, and the President’s budget stuck to them. The President’s budget is essentially a suggested method of allocating the agreed-upon funds.
The proposals would generally apply for tax years beginning, property placed in service, and other triggering events occurring, after Dec. 31, 2016.
Business Tax Proposals
In his budget, the President introduced the following business tax proposals:
- Implement a new $5,000 per-student “Community College Partnership Tax Credit” for businesses that hire graduates from community and technical colleges, as an incentive to encourage employer engagement and investment in these education and training pathways. The budget would provide $500 million in credit authority for each year from 2017 through 2021.
- Impose a new “financial fee”—i.e., a 7% basis point fee on liabilities of large, highly-leveraged financial institutions.
- Increase the maximum Code Sec. 179 expensing limit to $1 million, indexed for inflation. Also index the cost of a sport utility vehicle that can be taken into account as qualified property ($25,000).
- Expand simplified accounting for small business and establish a uniform definition of “small business” for accounting methods—generally, $25 million (indexed for inflation) in annual average gross receipts over a 3-year period.
- Increase the limitations for deductible new business expenditures (to $20,000) and consolidate provisions for start-up and organizational expenditures.
- Expand and simplify the tax credit provided to qualified small employers for non-elective contributions to employee health insurance, by increasing the maximum number of employees a qualifying employer can have to 50 and increasing the threshold at which the credit begins to phase out to 20 employees.
- Simplify and expand the research tax credit by repealing the traditional method of calculating the credit, increase the rate of the alternative simplified credit from 14% to 18%, eliminate the reduced ASC rate of 6% for businesses without qualified research expenses in the prior three years, allow all taxpayers to use the credit to offset AMT liability, modify treatment of contract research expenses, and repeal the special rule for owners of a pass-through entity.
- Permanently extend the work opportunity tax credit (WOTC), currently in effect through 2019, expand the definition of a “qualified veteran,” and provide that qualified first-year wages of up to $12,000 paid to such individuals would be eligible for the WOTC. In addition, permanently extend the Indian employment credit, currently in effect through 2016, and modify how it is calculated.
- Reform the tax treatment of derivative contracts by requiring that all such contracts be “marked to market,” with resulting gains and losses taxed each year and treated as ordinary income.
- Modify rules that apply to sales of life insurance contracts.
- Expand pro rata interest expense disallowance for corporate-owned life insurance.
- Conform net operating loss (NOL) rules of life insurance companies to those of other corporations (i.e., by eliminating the longer carryback of an insurance companies loss from operations).
- Eliminate special depreciation rules for airplanes not used in commercial or contract carrying of passengers or freight (e.g., corporate jets) by increasing the depreciation period from five to seven years, consistent with the treatment of commercial aircraft.
- Require all corporations and partnerships with $10 million or more in assets, and corporations with more than ten shareholders and partnerships with more than ten partners, to file their tax returns electronically.
- Permanently extend and modify the New Markets Tax Credit (NMTC), with an allocation amount of $5 billion for each year after 2019.
- Eliminate the deduction for dividends on stock of publicly-traded corporations held in employee stock ownership plans (ESOPs).
- Repeal the exclusion of net unrealized appreciation in employer securities (i.e., a special tax benefit available to recipients of distributions from certain plans that hold employer stock and meet other requirements).
- Reform and expand the low-income housing tax credit (LIHTC) by, among other things, providing two ways in which a private activity bond (PAB) volume cap could be converted into LIHTCs and allowing LIHTC-supported projects to elect a criterion employing a restriction on average income.
- Change the FUTA credit reduction rules.
- Raise the FUTA wage base in 2018 to $40,000 per worker, index the wage base to wage growth for subsequent years, and reduce the net Federal UI tax from 0.8% (after the proposed permanent reenactment and extension of the FUTA surtax) to 0.167%.
- Repeal the last-in, first-out (LIFO) accounting method for inventories.
- Repeal the lower-of-cost-or market and subnormal goods methods of inventory accounting. Any resulting income inclusion would be recognized over a 4-year period beginning with the change year.
- Repeal the “boot-within-gain” limitation for dividends received in reorganization exchanges.
- Expand the definition of “substantial built-in loss” under Code Sec. 743(b) for purposes of partnership loss transfers.
- Extend partnership basis limitation rules to nondeductible expenditures.
- Amend Code Sec. 704(d) to allow a partner’s distributive share of expenditures not deductible in computing the partnership’s taxable income and not properly chargeable to capital account only to the extent of the partner’s adjusted basis in its partnership interest at the end of the partnership year in which such expenditure occurred.
- Deny deductions for punitive damages.
- Tax corporate distributions as dividends (i.e., prevent use of leveraged distributions and similar transactions to avoid dividend treatment).
- Repeal the FICA tip credit.
- Repeal the excise tax credit for certain distilled spirits.
- Modify like-kind exchange rules for real property to limit the amount of capital gain deferred under Code Sec. 1031 from the exchange of real property to $1 million (indexed for inflation) per taxpayer per tax year.
- Conform the control test under Code Sec. 368 with the affiliation test under Code Sec. 1504 such that “control” would be defined as the ownership of at least 80% of the total voting power and at least 80% of the total value of a corporation.
- Prevent the elimination of earnings and profits through distributions of certain stock with basis attributable to dividend equivalent redemptions.
- End the “carried interest” loophole (i.e., where certain types of income is taxed as capital gain) by taxing this income as ordinary income.
- Increase certainty with respect to worker classification by permitting IRS to require prospective reclassification of workers who are currently misclassified and whose reclassification has been prohibited under current law.
- Repeal “technical terminations” of partnerships under Code Sec. 708(b)(1)(B).
- Repeal the anti-churning rules for amortization of intangibles under Code Sec. 197.
- Repeal the special estimated tax payment provision for certain insurance companies.
- Require current inclusion in income of accrued market discount and limit the accrual amount for distressed debt.
- Require that the cost basis of stock that is a covered security must be determined using an average basis method.
Proposals to Boost U.S. Manufacturing and Insourcing of Jobs
To encourage businesses to locate jobs and business activity in the U.S., the President’s budget proposes to make these changes, among others:
- …Upon enactment, provide additional tax credits ($2.5 billion) for investment in qualified property used in a qualified advanced energy manufacturing project.
- …Provide two tax incentives applicable to the 20 designated promise zones—an employment tax credit and eligibility of qualified property placed in service within the zone for additional first-year depreciation of 100% of the adjusted basis of the property.
- …Effective for expenses paid or incurred after the enactment date, disallow deductions for expenses paid or incurred in connection with outsourcing a U.S. trade or business. Outsourcing a U.S. trade or business would mean reducing or eliminating a trade or business or line of business currently conducted inside the U.S. and starting up, expanding, or otherwise moving the same trade or business outside the U.S., to the extent that this action results in a loss of U.S. jobs.
- …Create a new allocated tax credit (“manufacturing communities tax credit”) to support investments in communities that have suffered a major job loss event (i.e., when a military base closes or a major employer closes or substantially reduces a facility or operating unit, resulting in a long-term mass layoff). About $2 billion in credits would be provided for qualified investments approved in each of the three years, 2017 through 2019.
International Tax System
The President’s budget also contained several proposals for reforming the U.S. international tax system, including to:
- 1. Restrict deductions for excessive interest of members of financial reporting groups.
- 2. Provide tax incentives for locating jobs and business activity in the U.S. (“insourcing”) and remove tax deductions for shipping jobs overseas. There would be a new general business credit equal to 20% of the eligible expenses paid or incurred in connection with insourcing a U.S. trade or business, and no deduction would be allowed for similar expenses paid to move jobs offshore.
- 3. Repeal delay in the implementation of worldwide interest allocation election (currently not available until tax years beginning after Dec. 31, 2020).
- 4. Impose a 19% minimum tax on foreign income, when earned (i.e., without deferral), after which earnings could be reinvested in the U.S. without additional tax.
- 5. Impose a 14% one-time tax on previously untaxed foreign income, payable ratably over five years.
- 6. Limit shifting of income through intangible property transfers, including by broadening the definition of intangible property to include workforce in place, goodwill, going concern value, and any other item owned or controlled by a taxpayer that is not a tangible or financial asset and that has substantial value independent of the service of any individual.
- 7. Disallow the deduction for excess non-taxed reinsurance premiums paid to affiliates.
- 8. Modify tax rules for dual capacity taxpayers.
- 9. Tax gain from the sale of a partnership interest on look-through basis.
- 10. Modify Code Sec. 338(h)(16) (by extending its application to any covered asset acquisition) and Code Sec. 902 (by removing foreign taxes from a Code Sec. 902 corporation’s foreign tax pool when earnings are eliminated) to limit credits when non-double taxation exists.
- 11. Close loopholes under subpart F, including those that allow taxpayers to manipulate or circumvent subpart F based largely on technical distinctions, by (i) creating a new category of subpart F income for transactions involving digital goods or services; (ii) expanding foreign base company income to include manufacturing services arrangements; (iii) amending the controlled foreign corporation (CFC) attribution rules; and (iv) eliminating the 30-day grace period before subpart F inclusions.
- 12. Restrict the use of hybrid arrangements that create stateless income, and limit the application of exceptions under subpart F for certain transactions that use reverse hybrids to create stateless income.
- 13. Limit the ability of domestic entities to expatriate by reducing the 80% test to a greater-than-50% test and eliminating the 60% test.
Environmental and Energy-Related Provisions
The President’s budget would:
- Impose a $10.25-per-barrel tax on crude oil.
- Increase and modify oil spill liability trust fund financing.
- Reinstate Superfund taxes.
- Permanently extend the renewable electricity production tax credit and make it refundable.
- Permanently extend the investment tax credit (under the terms available to sources in 2017)—i.e., permanently extend the 30% investment tax credit for solar, fuel cell, and small wind property, and the 10% credit for geothermal, microturbine, and combined heat and power property.
- Reform and make permanent the deduction for energy-efficient commercial building property.
- Provide a carbon dioxide investment and sequestration tax credit.
- Modify and extend the tax credit for the construction of energy-efficient new homes.
- Provide a carbon dioxide investment and sequestration tax credit.
- Provide additional tax credits for investment in qualified property used in a qualifying advanced energy manufacturing project.
- Extend and ultimately phase out the tax credit for second generation biofuel production.
- Replace the credit for plug-in electric drive motor vehicles with a tax credit for the production of advanced technology vehicles.
- Provide a tax credit for medium- and heavy-duty alternative-fuel commercial vehicles.
- Repeal the exemption from corporate income tax for fossil fuel publicly traded partnerships.
- Eliminate fossil fuel tax preferences by repealing the enhanced oil recovery credit, the credit for oil and gas produced from marginal wells, expensing of intangible drilling costs, the deduction for tertiary injectants, the exception to passive loss limitation for working interests in oil and natural gas properties, percentage depletion for oil and natural gas wells, and the domestic manufacturing deduction for oil and natural gas production. Additionally, increase the geological and geophysical amortization period for independent producers to seven years.
- Eliminate coal preferences by repealing expensing of exploration and development costs, percentage depletion for hard mineral fossil fuels, capital gains treatment for royalties, and the domestic manufacturing deduction for the production of coal and other hard mineral fossil fuels.
Tax Changes for Individuals
The President’s plan calls for numerous changes to be made for individuals, including those that:
- …Increase the top tax rate on capital gains and dividends to 24.2% (plus the 3.8% Net Investment Income Tax, for a total top rate of 28%).
- …Consolidate the Lifetime Learning Credit into an expanded American Opportunity Tax Credit (AOTC), and make the AOTC available for five years and refundable up to $1,500. Index for inflation the refundable portion of the AOTC and the expense limits.
- …Make Pell Grants excludible from income and the AOTC calculation.
- …Eliminate tax on student loan debt forgiveness while repealing the complicated student loan interest deduction for new borrowers.
- …Increase and expand the earned income tax credit (EITC) for workers without qualifying children and non-custodial parents (i.e., such that taxpayers who are otherwise eligible for the EITC, but who reside with qualifying children for whom they do not claim an EITC, can now claim the EITC for themselves).
- …Create a “Second Earner Tax Credit” for married couples where both spouses work.
- …Limit the tax value of certain deductions or exclusions from AGI and all itemized deductions to 28% for taxpayers in the 33%, 35%, and 39.6% brackets (with a similar exclusion applying under the AMT).
- …Observe the “Buffett rule” by imposing a new “fair share tax” (FST), which would generally require that higher-income taxpayers pay no less than 30% of income—after charitable contributions—in taxes.
- …End the loophole that allows some high-paid professionals to avoid paying Medicare and Social Security payroll taxes, and close gaps between the Self-Employment Contributions Act (SECA) tax and the net investment income tax (NIIT) to ensure that all high-income individuals fully contribute to Medicare, either through the NIIT or through payroll or SECA taxes.
- …Extend the exclusion from income for cancellation of certain home mortgage debt through 2017.
- …Disallow the deduction for charitable contributions that are a prerequisite for purchasing tickets to college sporting events.
- …Increase the standard mileage rate for automobile use by volunteers to equal the rate set by IRS for purposes of the medical and moving expense deduction.
- …Repeal dependent care flexible spending accounts and increase the child and dependent care tax credit, with a larger credit for families with children under age five. The full credit would be available to working families with incomes up to $120,000.
- …Provide relief to certain “accidental” dual citizens.
- …Amend certain conservation easement deduction rules by eliminating the deduction for easements on golf courses and disallowing deductions for any value of a historic preservation easement associated with forgone upward development above a historic building.
- …Modify the conservation easement deduction (by strengthening standards for organizations to qualify to receive deductible contributions, among other things) and pilot a conservation credit.
- …Require non-spouse beneficiaries of deceased IRA or annuity (IRA) owners and retirement plan participants to take inherited distributions over no more than five years.
- …Allow all inherited plan and IRA or annuity (IRA) balances to be rolled over within 60 days.
- …Effective for taxpayers who attain age 70 1/2 by Dec. 31, 2014, and for taxpayers who die on or after that date before attaining age 70 1/2, eliminate the required minimum distribution (RMD) rules for IRA or annuity (IRA) plan balances of $100,000 or less.
- …Consolidate the contribution limitations for charitable deductions and extend the carryforward period for excess charitable contribution deduction amounts.
Estate and Gift Tax Proposals
The President’s budget would also:
- Generally treat transfers of appreciated property as a sale of the property, such that the donor or deceased owner of an appreciated asset would realize a capital gain (FMV over basis) at the time the asset is given or bequeathed to another that would be taxable income to the donor in the year the transfer was made (in effect, ending stepped up basis). The unlimited use of capital losses and carry-forwards would be allowed against ordinary income on the decedent’s final income tax return, and the tax imposed on gains deemed realized at death would be deductible on the estate tax return of the decedent’s estate (if any). Gifts or bequests to a spouse or to charity would carry the basis of the donor or decedent. The proposal would exempt any gain on all tangible personal property such as household furnishings and personal effects (excluding collectibles), and would allow a $100,000 per-person exclusion of other capital gains recognized by reason of death that would be indexed for inflation after 2017, and would be portable to the decedent’s surviving spouse under the same rules that apply to portability for estate and gift tax purposes (making the exclusion effectively $200,000 per couple).
- Restore the estate, generation-skipping transfer (GST), and gift tax exemption and rates to 2009 levels. Thus, the top tax rate would be 45%, and the exclusion amount would be $3.5 million for estate and GST taxes, and $1 million for gift taxes.
- Limit the duration of the GST tax exemption by requiring that, on the 90th anniversary of the creation of a trust, the GST exclusion allocated to the trust would terminate.
- Expand the requirement of consistency in value for transfer and income tax purposes to also include certain property qualifying for the estate tax marital deduction and certain property transferred by gift.
- Effective for trusts created after the enactment date, require a grantor retained annuity trust (GRAT) to have a minimum term of ten years and a maximum term of the life expectancy of the annuitant plus ten years. Also, the remainder interest would have to have a value greater than 25% of the value of the assets contributed to the GRAT or $500,000, and any decrease in the annuity during the GRAT term and any tax-free exchange of any asset held in the trust would be prohibited.
- Effective for trusts created after the enactment date (and to the portion of a preexisting trust attributable to additions to such a trust made after that date), limit the duration of GST tax exemption by, on the 90th anniversary of the creation of a trust, providing that the GST exclusion allocated to the trust would terminate.
- Extend an estate tax lien under Code Sec. 6324(a)(1) to apply throughout the Code Sec. 6166 deferral period.
- Modify GST tax treatment of health and education exclusion trusts such that the exclusion from the definition of a GST applies only to a payment by a donor directly to the provider of medical care or the school in payment of tuition and not to trust distributions, even if for the same purposes.
- Simplify gift tax exclusion for annual gifts by eliminating the present interest requirement for gifts that qualify for the gift tax annual exclusion. Instead, the budget proposal would define a new category of transfers (without regard to the existence of any withdrawal or put rights) and would impose an annual limit of $50,000 per donor on the donor’s transfers of property within this new category that will qualify for the gift tax annual exclusion.
- Expand the applicability of the definition of an “executor” to expressly make the Code’s definition applicable for all tax purposes, and authorize such executor to do anything on behalf of the decedent in connection with the decedent’s pre-death tax liabilities or obligations that the decedent could have done if still living.
Retirement Savings Provisions
The President introduced a number of proposals to spur retirement savings, including to:
- … Eliminate the “common bond” requirement, making it easier for unaffiliated employers to take advantage of open multiple employer plans (MEPs).
- …Triple the existing “startup” credit under Code Sec. 45E such that small employers that newly offer a retirement plan can receive a tax credit of $1,500 per year for up to three years, and small employers that already offer a plan and add auto-enrollment would get a tax credit of $500 per year for up to three years.
- …Require long-term, part-time workers (i.e., those who have worked for an employer for at least 500 hours per year for at least three years) to be eligible to participate in the employer’s existing retirement plan.
- … Require employers with more than 10 employees to automatically enroll workers without access to a workplace plan in an IRA.
- …Expand penalty-free withdrawals (i.e., expand the exception from the 10% additional tax under Code Sec. 72(t)) for the long-term unemployed.
- …Facilitate annuity portability by allowing participants to take a distribution of a lifetime income investment through a direct rollover to an IRA or other retirement plan if the annuity investment is no longer authorized to be held under the plan, without regard to whether another event permitting a distribution has occurred.
- …Simplify required minimum distribution (RMD) rules by exempting an individual from RMD requirements if the aggregate value of his IRA and tax-favored retirement plan accumulations does not exceed $100,000m, and making the RMD requirements consistent for holders of designated Roth accounts and Roth IRAs.
- …Limit Roth conversions to pre-tax dollars, by permitting amounts held in a traditional IRA to be converted to a Roth IRA (or rolled over to one) only to the extent a distribution of those amounts would be includable in income if they were not rolled over.
- …Prevent additional tax-preferred retirement saving by individuals who have already accumulated tax-preferred retirement savings sufficient to finance an annual income of over $210,000 per year in retirement (i.e., more than $3 million per person).
Healthcare-Related Tax Proposals
The budget calls for the following changes relating to healthcare and the Affordable Care Act (ACA):
- i. Provide three years of federal funding to 19 state governments that declined the ACA’s optional Medicaid expansion—i.e., by covering the costs of expansion for the first three years regardless of when a State expands.
- ii. Make certain modifications to the “Cadillac” excise tax on high cost employer-sponsored health coverage (the effective date of which was recently pushed back to tax years beginning after Dec. 31, 2019)—specifically, by modifying the treshold above which the tax applies to be the greater of the current law threshold or the average premium for a Marketplace gold plan in each State. This change would address concerns that the tax could unfairly impact those in states where health costs are higher than the national average. In addition, the budget proposal would require a study of the potential effects of the excise tax on firms with unusually sick employees.
Miscellaneous Tax Proposals
The budget also includes proposals to:
- …Provide that the Treasury Department and IRS have authority to regulate all paid return preparers.
- …Increase base IRS funding to $12.8 billion.
- …Impose liability on shareholders to collect unpaid income taxes of applicable corporations.
- …Establish a “program integrity cap adjustment” for tax administration, including $515 million in 2017, to deliver additional resources to critical tax enforcement and compliance functions.
- …Revise offer-in-compromise rules to require that an initial offer include a nonrefundable payment of any portion of the offer.
- …Make repeated willful failures to file a tax return a felony if the aggregated tax liability exceeds certain amounts.
- … Ensure that all trade or business income of high-income taxpayers is subject to the 3.8% Medicare tax, either through the NIIT or SECA, by amending the definition of net investment income to include gross income and gain from any trades or businesses of an individual that is not otherwise subject to employment taxes. This change would address the limited partners and members of LLCs or other entities taxed as partnerships who materially participate in their firms but who claim the limited partner exclusion from SECA. It would include all nonwage earnings, of high-income S corporation owner-employees, and it would include sales of business property by active partners and S corporation shareholders. Also, the budget would treat individual owners of professional service businesses taxed as S corporations or partnerships as subject to SECA taxes in the same manner and to the same degree.
- …Increase tobacco taxes and index them for inflation.
- …Reinstate and permanently extend the 0.2% FUTA surtax.
- …Provide America Fast Forward (AFF) Bonds aimed at attracting new sources of capital for infrastructure investment and expand their eligible uses.
- …Allow current refundings of state and local governmental bonds.
- …Repeal the $150 million non-hospital bond limitation on all qualified Code Sec. 501(c)(3) bonds.
- …Provide a new category of qualified private activity bonds for infrastructure projects referred to as “qualified public infrastructure bonds.”
- …Modify qualified private activity bonds for public education facilities.
- …Streamline private activity limits on governmental bonds.
- …Modify treatment of banks investing in tax-exempt bonds.
- …Repeal tax-exempt bond financing of professional sports facilities.
- …Allow more flexible research arrangements for purposes of private business use limits.
- …Modify tax-exempt bonds for Indian tribal governments.
- …Increase whistleblower protections by, among other things, amending Code Sec. 7623 to explicitly protect whistleblowers from retaliatory actions, consistent with the protections currently available to whistleblowers under the False Claims Act.
- …Improve information reporting for certain businesses and contractors to (i) require a certified TIN from contractors and allow certain withholding, and (ii) require information reporting for private separate accounts of life insurance companies.
- …Require Form W-2 reporting for employer contributions to defined contribution plans.
- …Modify reporting of scholarships on Form 1098-T.
- …Combat tax-related identity theft by adding certain tax offenses to the list of predicate offenses in the Aggregated Identity Theft Statute.
- …Enhance administrability of the appraiser penalty under Code Sec. 6695A by replacing the “more likely than not” exception with a reasonable cause exception, and coordinating that penalty with the Code Sec. 6694 penalty.
- …Provide for reciprocal reporting of information in connection with the implementation of the Foreign Account Tax Compliance Act (FATCA).
- …Index all fixed-amount penalties to inflation and round the indexed amount to the next hundred dollars.
- …Modify indexing to prevent deflationary adjustments (i.e., the decline of certain tax parameters from the previous year’s levels if the underlying price index falls).
- …Modify IRS’s math error authority and add a new category of “correctable errors.”
- …Allow offset of federal income tax refunds to collect delinquent state income taxes for out-of-state residents.
- …Replace the two rates of tax on private foundations that are exempt from Federal income tax with a single rate of 1.35%.
- …Accelerate information return filing due dates such that most returns would be required to be filed with IRS by January 31, except that Form 1099-B would be required to be filed by February 15.
- …Allow IRS to absorb credit and debit card processing fees for certain tax payments.
- …Repeal the telephone excise tax.
- …Eliminate certain reviews of IRS by the Treasury Inspector General for Tax Administration (TIGTA).