The White House released a nine-page “framework” of its tax plan Wednesday, suggesting that Congress will work out the details before cementing it into law. The proposal called for the corporate tax rate and the top income tax rate for the highest earners to be lowered, while its effect on middle- and low-income Americans was still unclear.
With billions of dollars at stake, corporations, trade associations and advocacy groups have been eager to weigh in on key tax provisions as the White House formulated its plan, something experts believe will continue as lawmakers finalize the legislation. Lobbying reports from the first half of 2017 show that several elements of the framework have drawn attention from special-interest groups.
“There’s a lot of uncertainty with the way the legislative process has begun — there are more unanswered questions than answered questions,” Eric Hananel, a principal at the accounting firm UHY LLP, who specializes in tax issues, told International Business Times. “What ultimately gets enacted could be extremely different from what we see today… The lobbyists are going to have a lot of influence as to how the legislation is ultimately drafted.”
Below are five elements of the framework and a rundown of who is lobbying to influence them.
The Carried-Interest Loophole
Although Trump has promised to repeal the carried-interest loophole — which allows general partners of private investment funds to be taxed at the capital gains rate, far lower than the income tax rate for high-earning individuals — it doesn’t make an appearance in the plan. But Trump economic adviser Gary Cohn said Thursday that Trump “continues to support the position that carried interest is one of those loopholes that we talk about when we talk about getting rid of loopholes that affect wealthy Americans.” Earlier this month, Treasury Secretary Steven Mnuchin said carried interest might be preserved for companies or “other entities that create jobs.”
With the prospect of the loophole closing, the finance and real estate industries have lobbied against the idea. Several financial trade groups including the American Investment Council, which represents private equity firms; the Managed Funds Association, representing prominent hedge funds; the National Venture Capital Association; the Small Business Investor Alliance; and the Private Investor Coalition, lobbied Congress, the Treasury Department and/or the White House on carried interest. Individual firms that lobbied on the matter include private equity firm Apollo Management LP, a member of the American Investment Council; asset managers Ares Management LLC and Alliance Bernstein; private equity firm Leonard Green & Partners, LP; and hedge fund Citadel LLC, founded by GOP mega-donor Ken Griffin.
One of the Private Investment Coalition’s top 2017 priorities, according to its website, is to “educate key policymakers on...how proposed changes to the tax treatment of carried interest could have unintentional and adverse consequences on family investment partnerships.”
The American Investment Council “strongly opposes proposals that seek to change the tax treatment of carried interest from a capital gain to ordinary income. Ultimately, private equity is responsible for pumping hundreds of billions of dollars into the U.S. economy and strengthening thousands of businesses each year. Raising taxes on carried interest would dis-incentivize [sic] entrepreneurial risk taking that is required to start, save and grow businesses.”
The Managed Funds Association concurred, writing on its website that it is “opposed to the discriminatory approach to proposed changes in carried interest to the extent that measures introduced to date have addressed concerns regarding carried interest for financial firms while leaving in place the existing regime for similarly situated non-financial entities.”
Real estate groups including the Commercial Real Estate Development Association (known as NAIOP), Real Estate Roundtable and the Building Owners and Managers Association International lobbied the federal government on the loophole. The conservative Center for Individual Freedom, a nonprofit founded by Karl Rove that has spent large sums on politics, lobbied against closing the loophole.
Lobbying on the other side of the carried interest debate were unions, good-government groups and social activism organizations including the United Automobile Workers union (UAW), the International Brotherhood of Teamsters, the Leadership Council on Civil and Human Rights, Public Citizen, and a group called The Patriotic Millionaires LLC, made up of wealthy individuals who are concerned “about the destabilizing concentration of wealth and power in America.”
The ‘Pass-Through’ Rate
Trump’s framework includes a 25 percent cap on what owners of so-called “pass through” businesses — partnerships, sole proprietorships, limited liability companies and S corporations, which have up to 100 shareholders — owe in income they earn from those businesses. The definition keeps small-business owners from paying both individual income tax and corporate tax on the profits that are, well, their incomes. But lowering the top rate to 25 percent from its current 39.6 percent, while keeping the top income tax rate at 35 percent, per Trump’s proposal, opens up an opportunity for high-income earners, such as consultants, attorneys or investors, to steeply cut their tax rates by redefining themselves as small businesses.
Trump’s plan punted this problem to Congress, stating that “the committees will adopt measures to prevent the recharacterization of personal income into business income to prevent wealthy individuals from avoiding the top personal tax rate.”
Some groups have gotten ahead of him, lobbying on the issue at least as recently as this past spring and early summer.
Among the biggest lobbying efforts over the pass-through tax rate was the accounting and consultancy firm Grant Thornton LLP, which advocates for lower pass-through rates and spent more than $300,000 on lobbying efforts that included that issue so far this year, federal documents show. Over the same period, the American Investment Council, which wants pass-through tax rates to be on par with business rates and for private equity publicly traded partnerships to be taxed as pass-throughs, spent $690,000 this year on lobbying in part related to “Proposals to alter the tax treatment of pass-through businesses.”
According to Hananel, Congress will likely have a tough time crafting legislation to help the Internal Revenue Service keep abuses of the pass-through classification in check.
“I think it’s going to be incredibly difficult to be able to monitor,” he said, stressing that the framework’s lack of clarity and shifting of responsibility to Congress could result in a grab-bag of final policy decisions. “They say that they’ll need enforcement by the government… and Congress has over the years continued to reduce the budget of the Internal Revenue Service, so they don’t have the power to oversee this.”
The Estate Tax
The White House proposal repeals what Trump often dubs the “death tax,” which, as of 2017, applies only to inheritances of more than $5.49 million for individuals and $10.98 million for couples — or, as the Center on Budget Policy and Priorities put it, just two estates for every thousand — which are hit with a rate of around 40 percent. Adding up to just $17.1 billion in federal revenues in 2015, the Estate Tax is commonly characterized as a punishingly high levy on small farmers, but the CBPP found it would affect only 50 small farms and small businesses in 2017.
Still, the agriculture lobby has ramped up its repeal efforts. The American Farm Bureau Federation, the self-described “voice of agricultural producers at all levels,” spent more than $1 million in each of the first two quarters of 2017 on lobbying efforts that involved a repeal of the Estate Tax, federal records show. The group was joined on this front by the Illinois Agricultural Association, the Alabama Farmers Federation, the Indiana Farm Bureau, the Florida Farm Bureau Federation, the Farmers Educational Cooperative Union of America and the U.S. Chamber of Commerce, a business advocacy organization that doesn’t disclose its membership and put $11.7 million toward lobbying efforts that included the Estate Tax repeal in the second quarter alone.
Trump’s proposal calls for making all earnings of American companies with at least a 10 percent stake offshore subject to corporate tax as if those dividends had been transferred back to the U.S.; it would grant a lower rate for “illiquid assets” such as facilities abroad, as opposed to cash and equities held in other countries.
Last year, Amazon.com, Apple Inc., Google Inc., Oracle Corp., Microsoft Corp. and Cisco Systems Inc. held $512 billion in cash overseas and as the Trump administration has deliberated a reduction in the rate on repatriated earnings, these international behemoths have ramped up their lobbying efforts in Congress.
“The Apples, the Amazons, the IBMs of the world will greatly benefit from this provision,” Hananel said, adding that there were “still a lot of unknowns” for Congress to iron out in this policy area. “Any entity that has offshore earnings and they own a 10 percent equity in that company, they will be able to bring the money back at a reduced tax rate. So it should be beneficial to all businesses.”
Amazon has spent nearly $3.6 million lobbying Congress on general tax policy issues in just the second quarter of 2017, but its files don’t get into specifics. Over the same three months, IBM Corp. and Apple have spent, respectively, roughly $1.7 million and $2.4 million doing the same. But the companies lobbying specifically on repatriation during the second quarter included large, global ones like Nike Inc., Oracle, PPG Industries Inc., Dell Technologies Inc. and Murphy Oil Corp., as well as business- and finance sector-representative groups like the Chamber of Commerce and the Securities Industry and Financial Markets Association.
Alternative Minimum Tax
“I'm doing the right thing, and it’s not good for me. Believe me,” Trump said Wednesday. But it’s doubtful the tax plan would actually hurt the president’s net worth, in large part due to his proposal to repeal the alternative minimum tax (AMT).
Many high-income Americans have access to a wide range of tax deductions, which, without the AMT, would often lower their effective tax rates to zero, or close to it. The AMT was established to make sure these individuals end up paying at least a minimum amount in taxes. Trump has refused to release his tax returns, but a leaked portion of his 2005 returns showed that the president paid about $38 million in taxes that year, nearly all due to the AMT. Without it, Trump would have paid roughly $5.5 million in taxes at a rate of around 3.5 percent. The New York Times estimated that Trump would save tens of millions more in annual taxes due to other provisions of his tax plan.
A host of unrelated corporations and business groups lobbied on the AMT, as the issue didn’t attract the volume of finance industry lobbyists that other issues such as carried interest did. CMS Energy Corp., Comcast Corporation, General Electric, General Motors Company, pharmaceutical company GlaxoSmithKline, Goodyear, Hartford Financial Services Group, T-Mobile and United Airlines, Inc. were among the companies lobbying on the AMT. The National Milk Producers Federation, a trade group, disclosed that it explicitly “supported efforts to eliminate” the AMT, as did State Farm Insurance Companies. Additional trade associations, Small Business and Entrepreneurship Council and Association for the Improvement of American Infrastructure lobbied on the AMT.BusinessVerified Related Video