March 14, 2021
Americas Tax Policy: This Week in Tax Policy News for March 12
This Week (March 15 - 19)
Congress: The House and Senate will be in session. Senate business could include a vote on the nomination of Katherine Tai to be U.S. Trade Representative.
Relief bill: On Monday March 15, VP Harris visits Las Vegas to talk about the benefits of the American Rescue Plan Act. On Tuesday, the President will travel to Delaware County, PA. Biden and Harris will both go to Atlanta on Friday, March 19.
Supply chain: The Senate Finance Committee has noticed a hearing , "Made in America: Effect of the U.S. Tax Code on Domestic Manufacturing," for Tuesday, March 16 (10:00 a.m.) Witnesses represent corporations, the National Association of Manufacturers, and United Steelworkers, plus Michelle Hanlon of MIT. (Among other publications, Hanlon coauthored a paper "Tax Avoidance and Multinational Firm Behavior" and an op-ed critical of Senator Warren's (D-MA) Real Corporate Profits tax of 7% on book income above $100 million .)
Filing season: The House Ways and Means Oversight Subcommittee will hold a 2021 Filing Season hearing with the IRS Commissioner on Thursday, March 18 (2:00 p.m.)
Trade: The Department of State announced March 10 that Secretary of State Anthony Blinken and White House National Security Advisor Jake Sullivan would meet with their Chinese counterparts, Director of the Office of the Central Commission for Foreign Affairs Yang Jiechi and State Councilor Wang Yi, next Thursday in Alaska to discuss "a range of issues" regarding the troubled U.S.-Chinese relationship. This will be the first in-person meeting between U.S. and Chinese diplomats since last June. In testimony before the House Foreign Affairs Committee this week, Secretary Blinken indicated his intention to press the Chinese on a number of trade issues and human rights topics. Biden administration officials, however, did not expect the Trump administration's Phase One China trade deal to be discussed in a meaningful way. "We are coming to these discussions clear-eyed about China's unsettling track record of failure to uphold its commitments," the State Department said in a statement. "We will use these discussions to reassert our global leadership and manage a relationship that is competitive when it should be, collaborative when it can be, and adversarial when it must be." In a related development, The Washington Post reported March 10 that Senate Majority Leader Chuck Schumer (D-NY) was "working on legislation that seeks to counter China's rising global power and proposes funding aimed at bolstering U.S. manufacturing and supply chains, among other measures."
Last Week (March 8-12)
COVID relief bill: On March 11, President Biden signed into law the $1.9 trillion American Rescue Plan Act (H.R. 1319), which includes modifications but not drastic changes to the pandemic relief plan he originally outlined in January. The president's action came a day after the House cleared the bill on a vote of 220-211, with one Democrat voting against the bill along with all Republicans. The Senate passed the bill March 6 after a marathon all-night session, 50-49, also with no Republicans in support. The bill includes provisions on taxes, health care, unemployment benefits, direct payments, state and local funding and other issues. The minimum wage increase was taken out of the bill and provisions on tax issues like worldwide interest, 6050W reporting, excess business loss, and 162(m) executive compensation were included along the way.
What's next: Democrats are going to focus on the relief bill a little while longer — they want to communicate its benefits to voters, and President Biden and VP Harris are hitting the road next week to do so — and the address to Congress to detail the Build Back Better plan may not happen until April. Punchbowl reported WH Chief of Staff Ron Klain as saying, "we will go to the country and take a few weeks to explain the plan … I think shortly after that you will see him work with the Congress on a joint address." (Note, both the House and Senate will be out for a holiday district/state work period March 29-April 9.) After the President proposes his budget — which will likely include a Treasury green book detailing tax proposals — congressional Democrats may begin work on the congressional FY2022 budget resolution that is expected to provide for a second round of budget reconciliation legislation that could be focused on infrastructure, clean energy incentives, and other recovery measures, along with potential tax increases. A second reconciliation bill could allow for, like the relief bill, passage in the Senate by a simple majority rather than subject to the 60-vote filibuster threshold. The March 12 Wall Street Journal reported House Budget Committee Chairman John Yarmuth (D-KY) as saying he doesn't expect the Administration budget until late April or May, and noting there is currently no nominee to fill the role of Director of the Office of Management and Budget (OMB). Chairman Yarmuth said it will be difficult for Democrats, who currently can lose only 4 of their own members' votes and still pass bills if all Republicans are opposed, to agree to the same budget resolution for a variety of reasons. "We have members who don't want to vote for a big defense number. We have members who don't want to vote for a big deficit and both of those will be in there by necessity." (A bipartisan budget agreement set FY2020 and 2021 discretionary funding limits, but those limits will need to be revisited for purposes of a FY 2022 budget resolution.)
Treasury: On March 11, President Biden announced his intention to nominate Lily Batchelder as Assistant Secretary for Tax Policy. The announcement said in part, "From 2014 to 2015, she served as Deputy Director of the White House National Economic Council and Deputy Assistant to the President under President Obama. There, she was responsible for tax and budget issues, including tax reform, retirement policy, and low-income benefits. From 2010 to 2014, she served as Majority Chief Tax Counsel for the U.S. Senate Committee on Finance, where she led Chairman Baucus's work on tax issues … " Her publications include the January 28, 2020 Hamilton Project report, "Leveling the Playing Field between Inherited Income and Income from Work through an Inheritance Tax;" and a September 11, 2019 NYU paper on the relative advantages and disadvantages of "Taxing the Rich," including:
International tax bills: On March 11, Rep. Lloyd Doggett (D-TX) and Senators Sheldon Whitehouse (D-RI), Elizabeth Warren (D-MA) et al. introduced the No Tax Breaks for Outsourcing Act (H.R. 1785/S. 714) to:
Doggett and Whitehouse also introduced the Stop Tax Haven Abuse Act (H.R. 1786/S. 725) that includes changes to the Base Erosion and Anti-Abuse Tax (BEAT) to lower the applicability threshold to $100 million in gross receipts (as opposed to the current $500 million); end a BEAT exception for royalty payments; and eliminate the 3% base erosion percentage such that all payments are included when determining a company's BEAT liability. It would also eliminate oil and gas provisions related to extraction and foreign tax credits.
Child credit: House Ways & Means Chairman Richard Neal (D-MA) said regarding the relief bill's Child Tax Credit expansion during a news conference March 9, "I've already had some thoughts about how we're going to expand it and make it permanent. And I intend to share those in the near future."
Policy & process: The Build Back Better plan to soon be outlined by President Biden seems wide open in terms of what priorities it will include, if and to what extent it includes tax increases, and whether it can attract GOP support/move outside the budget reconciliation process. The Washington Post observed that "the White House so far has not said what Biden will turn to next as part of his legislative agenda;" Press Secretary Jen Psaki "declined to outline any components of a potential jobs and infrastructure package;" and "the White House has declined to say whether Biden would be open to the fast-track parliamentary measure used for coronavirus relief — called reconciliation — on infrastructure, with officials noting that the president hasn't even proposed a bill." Axios on Monday reported the following from an interview with Senator Joe Manchin (D-WV) regarding the next bill: "He talked up an array of tax increases, including raising the corporate tax rate from the current 21% to 25% 'at least,' and repealing 'a lot of' the Trump tax cuts for the wealthy."
The Post reported Senator Manchin as calling on Democratic leaders to reach out to top Republicans on the next bill and suggesting he is wary of using budget reconciliation for infrastructure, while Budget Committee Chairman Bernie Sanders (I-VT) is inclined to use it because, "I want to get it done." Senate Finance Chairman Ron Wyden (D-OR), whose committee will play a major role on financing and other aspects of an infrastructure bill, said, "You've got to be ready on both fronts … I'm going to do everything I possibly can — you've seen the president's remarks — to make this next round bipartisan. But if it becomes clear that there's just no real interest in that, then you've got to be ready to meet the needs of the public." In a March 12 news release, House Speaker Nancy Pelosi (D-CA) said, "I have called upon the Chairs of the Committees of Jurisdiction to work with their Republican counterparts to craft a big, bold and transformational infrastructure package."
Filibuster repeal: In addition to reconciliation, a way around the 60-vote Senate threshold is filibuster repeal. A March 7 New York Times analysis said Democrats "worry that voters would punish them more harshly in the 2022 midterm elections for failing to take advantage of their power to enact sweeping policy changes than for failing to work with Republicans and strike bipartisan deals." The analysis also said, "Anticipating the Republican recalcitrance to come, Democrats are increasingly coalescing around the idea of weakening or destroying the filibuster to deny Republicans their best weapon for thwarting the Democratic agenda," but acknowledged it would require the support of some moderates currently opposed. A March 11 NYT editorial said: "If America is to be governed competently and fairly — if it is to be governed at all — the filibuster must go."
SRM hearing: During the March 11 House Ways & Means Select Revenue Measures Subcommittee hearing on "Tax Tools to Help Local Governments," Chairman Mike Thompson (D-CA) noted that the Moving Forward infrastructure bill from the last Congress (passed by the House but not the then-GOP-controlled Senate) would bring back tax-exempt advanced refunding bonds, increase the threshold for bank-qualified bonds, and reinstate Build America Bonds (BABs), in addition to investing in green energy. Witness Elizabeth Reich, Chief Financial Officer of Dallas, said restoring and expanding the use of direct-pay bonds should not be a replacement for traditional tax-exempt bonds. Responding to a question from Rep. Gwen Moore (D-WI), Reich said Dallas issued several tax-exempt bond issues for purposes of advance refunding that resulted in a significant amount of savings for taxpayers, and she called for restoring advance refunding of tax-exempt bonds to provide resources that could be applied to infrastructure projects. (The TCJA repealed advance refunding bonds.) Rep. Don Beyer (D-VA) said advance refunding is a top issue raised in his district, and Reich said BABs can complement but not replace municipal bonds but, with direct pay bonds, there is a wider range of investors. Stacey Plaskett (D-VI) asked about interest in reviving BABs. Witness Kevin Boyce, a county commissioner in Ohio, said the sequestration of BABs (due to the Budget Control Act) put stress on state and local governments. Rep. Terri Sewell (D-AL), a former bond lawyer, said all tools need to be used to revitalize our infrastructure, and she is: fighting to restore advance refunding for tax-exempt municipal bonds; "leading the charge" on raising the cap on the amount of bank-qualified debt that local government and nonprofit issuers can utilize; and advocating for restoration of sequestration-proof direct-pay bonds to build on the success of BABs. Rep. Sewell announced she is planning to introduce comprehensive legislation on these types of issues in coming weeks. Some Republican members used the hearing to criticize the relief bill for its size and for including provisions that don't directly address COVID.
JCT: The Joint Committee on Taxation held an organizational meeting March 9 during which House Ways & Means Committee Ranking member Kevin Brady (R-TX) said it is important to act on TCJA technical corrections this year. JCT is seeking a 2% funding increase.
Recently introduced legislation of note:
Below is a timeline for guidance projects released by the IRS related to the TCJA.