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Is the US tax reform effort in trouble?

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Five months after President Trump took office, initial optimism for early implementation of a broad-based tax reform has begun to fade. Both proponents and opponents of comprehensive tax reform now see the real possibility of stalemate. At present, the US House Republican tax reform plan is taking criticism from conservatives as well as liberals. Furthermore, although Donald Trump has been in office since 20 January, it was just last week that the Trump administration finally unveiled its broad principles for tax reform. Add to the mix that the repeal of Obamacare, which was to precede tax reform, has been stalled in the House. Consequently, some observers are beginning to say that the whole tax reform project is in doubt. Yet, there are still plenty of options available for some sort of tax reform bill to ultimately result from this process.

In our first article on President Trump’s tax plans (‘What Donald Trump’s election means for US tax policy’, Tax Journal, 18 November 2016), we noted that there was a post-election surge in optimism in the United States following the November election that broad-based tax reform legislation could be enacted and signed into law in 2017. However, five months later, both proponents and opponents of comprehensive tax reform now see the real possibility of stalemate as pressure groups and even some members of Congress agitate against both the broad overview of principles for tax reform released by the Trump administration just last week (the ‘Trump proposals’), and the first tax reform proposal on the table, the US House Republicans’ earlier daring Blueprint for Tax Reform (the ‘Blueprint’) (which was characterised by the Republican House Ways and Means Committee Chairman Kevin Brady as a ‘once-in-a-generation chance to devise a US tax code built for growth’).

The original plan

In June 2016, shortly after Donald Trump became the presumptive Republican nominee, the US House Republican leadership unveiled its policy program for the coming election which included the so-called ‘Blueprint for Tax Reform.’ That plan sought to showcase innovative thinking by moving beyond a history of Republican tax cuts and instead promoting an ambitious shift in the US corporate tax base to a border-adjustable consumption tax. Simultaneously, the deductibility of interest as a business expense would be eliminated and replaced with immediate expensing of capital expenditures. (For a description of the other elements of the Blueprint, see our previous article.)

At the time, the Blueprint was seen by many observers as an interesting but unrealistic document for two reasons: first, Trump was expected to lose to Hillary Clinton in November, and, second, the Republicans were expected to lose control of the US Senate to the Democrats. As we now know, neither happened. Consequently, the Blueprint emerged during the aftermath of the election as the de facto starting point for the comprehensive tax reform effort.

House Speaker Paul Ryan and Chairman Brady have kept the prospects for the Blueprint alive post-election, even through the challenge of several iterations of Candidate Trump’s tax plans during the fall campaign, the evident disinterest of some of their US Senate colleagues in the Blueprint, and the fierce opposition of sectors of the business community – particularly importers and retailers – who feel they would be disadvantaged by the Blueprint’s 20% border adjustable tax. Democrats, too, along with the US’s international trading partners (some of who have threatened massive reciprocal tariffs and/or litigation at the WTO), have been steadfastly opposed to the Blueprint.

However, there were still commonalities between the themes contained in the Blueprint and Candidate Trump’s skeletal tax reform proposals released during the election campaign. And after last week (almost 100 days into the Trump Presidency), when Treasury Secretary Steven Mnuchin and National Economic Council Director Gary Cohn revealed the current thinking of the president in the form of the Trump proposals, which mostly repeat campaign pledges made last year before the election, it is evident that there still are many common features between the House Republican and Trump administration plans. In fact, Speaker Ryan has said, ‘We’re in agreement on 80%, and then that last 20%, we’re in the same ballpark.’

So when will tax reform move to centre stage?

The procedural framework for passage of comprehensive tax reform was laid out early. As the first order of business for the new Congress, Republicans were eager to repeal the Affordable Care Act (‘Obamacare’) and replace it with the American Health Care Act (‘AHCA’). However, the strategy has been stymied by infighting among House Republicans that has so far denied Republican leaders the votes necessary to pass the AHCA bill in that chamber.

Unless and until the effort in the House to repeal and replace Obamacare either ends in failure, or the current situation changes and the repeal and replace effort passes the House and moves on to the Senate (which appears somewhat more likely now that the so-called Republican ‘Freedom Caucus’ appears to be coming around to support a revised AHCA bill), tax reform will not move forward on the House’s legislative agenda. But even if that does happen, there will still be many hurdles for any tax reform bill to overcome before it could be sent to President Trump’s desk for his signature.

At the top of the list is the problem that many features of the Blueprint were not well received. The two most significant of such features are the proposed Border Adjustable Tax (‘BAT’) and the non-deductibility of interest (both discussed in some detail below). Likewise, it is anticipated that many features of the Trump proposals will not be well received either. Once more details and specificity about the individual elements of the Trump proposals emerge, some of what the Trump administration has proposed will undoubtedly be severely criticised by segments of the tax paying population, members of Congress and others.

Also, because of what has transpired thus far regarding the effort to repeal and replace Obamacare, Speaker Ryan and Chairman Brady may be somewhat unsure of the depth of the support that they can count on to move a tax reform bill to the floor of the House and then to get it passed once it is there.

There is no sign yet of any proposed bill by the Senate Finance Committee. Perhaps more importantly, there appears to be a lot of discontent among Republican senators with certain features of the Blueprint, particularly the BAT. Also, there are sure to be some Republican senators who are wary of passing a tax bill that would substantially increase the budget deficit in future years.

There appears to have been disagreement within the Trump administration as to exactly how to move forward. Should it take the lead on tax reform and present its own proposals to Congress? Or should it at least take a more proactive role and work in tandem with the Republicans in the House (and probably the Senate too) to produce a tax reform plan that would be acceptable to both the administration and enough senators and congressmen to be enacted? (Either approach would be quite different from the approach the Trump administration took with respect to the repeal and replacement of Obamacare, where it took a ‘back seat’ to the House Republicans during the drafting of the AHCA bill which struggled to get passed by the Republican-controlled House.) Because the Trump administration has now released its broad overview of principles for tax reform, it looks like it has chosen the latter course of action.

If the Trump administration is to lead on tax reform, it will need to staff up quickly. Key policy positions remain unfilled at the Treasury Department and the key staff who have stayed on from the previous administration have just been tasked with a major review of prior regulations.

Another issue is whether the ultimate tax reform legislation must be revenue neutral, meaning that the new law would not increase the budget deficit. (Some key players in the process are hinting that strict revenue neutrality may not be as important as it has been over the last 30 years.) If it is not revenue neutral, there is also the question of how that would impact final passage of any tax reform legislation. Based on the Trump proposals released last week, the Trump administration does not seem overly concerned with increasing the budget deficit so long as passage of tax reform legislation results in increased economic activity. In fact, at this point, the Trump administration’s answer to this issue is that the tax cuts will spur economic growth and increase revenue, which will help avoid increased deficits.

The Senate Republicans face a quandary in that, with just 52 votes, they would not be able to overturn a Democratic filibuster without attracting at least eight votes from the opposition party. Given the hardened political positions following the last election, any outreach to the Senate Democrats by the Senate Republicans seems unpromising. However, a statutory exception to the Senate’s budget rules explicitly prohibits a filibuster of a tax bill if that bill does not decrease net federal revenues in the fiscal years beyond the ‘reconciliation instructions’ (traditionally ten years). This means tough trade-offs may be needed or even making the changes temporary, or both. For example, one way that can be dealt with is to have the tax cuts sunset at the end of ten years, the approach that was taken by the Congress in enacting the Bush Administration tax cuts in 2001 and 2003, but even that may not be possible if the proposals currently under consideration would have revenue effects beyond the ten-year horizon.

The Trump administration’s proposals

Just last week, the Trump administration finally unveiled its broad overview of ‘principles for tax reform’ in a one-page document that purposefully left both the legislative process and technical details very fluid. The Trump proposals generally follow the tax cut proposals Candidate Trump released during his campaign last year, but with some crucial changes. At the time the Trump proposals were released to the public, Secretary Mnuchin and Director Cohn talked of holding ‘listening sessions’ with business groups to sound out stakeholders on the structure of an eventual bill. And it appears that when a bill is finally drafted, it will be a joint Trump administration/Congressional Republican effort. In what is essentially an opening bid to spur debate and grant Presidential momentum to the somewhat stymied tax reform effort, the White House has now clarified the stakes for both proponents and opponents of the various tax reform proposals. Also importantly, the Trump administration is now politically positioned to lay claim to any resulting legislation as a ‘tax reform’ victory.

The one-page outline of the Trump proposals issued by the White House set forth the following features:

Changes to the individual income tax

  • Consolidate the current seven tax brackets to three: 12%, 25% and 33%. This change would cut the current top 39.6% tax rate by 6.6 percentage points. In addition, married filers earning less than $24,000, would owe no taxes.
  • Keep the current law special tax rate structure for long term capital gains with a top rate of 20%.
  • Repeal the 3.8% net investment income tax (part of the Obamacare taxes).
  • Repeal the individual alternative minimum tax.
  • Increase the standard deduction to $12,600 for single filers and $25,200 for married joint filers.
  • Provide tax relief for families with child and dependent care expenses.
  • Repeal ‘most of’ the deductions and credits that benefit ‘high-income individuals’ other than home-ownership and charitable giving and perhaps retirement savings as well. In particular, the deduction for payments of State and local taxes would be eliminated.

Changes to business income taxes

  • Reduce the top corporate rate from 35% to 15%, but retain the current law ‘double taxation’ of dividends, presumably at capital gains rates.
  • Pass-through businesses (such as partnerships, S corporations and LLCs) would be taxed at the 15% corporate rate. This item is already drawing fire because on its face it not only applies to small businesses operating in pass-through entities, but could also apply to large professional services firms, hedge funds and real estate businesses. (However, anti-abuse rules to prevent business owners from recharacterizing personal income taxed at higher individual tax rates as business income taxed at the lower business tax rate have been promised by Secretary Mnuchin when the plan is fleshed out further.)
  • Move to a territorial tax system of no longer taxing foreign profits to level the playing field for multinational American companies.
  • Enact a one-time deemed repatriation of accumulated overseas earnings at a tax rate yet to be determined.
  • Eliminate tax breaks for (undefined) ‘special interests.’

Other changes

  • Repeal the estate, gift and generation skipping transfer taxes.

Border adjustable tax/non-deductibility of Interest

The Blueprint would replace the corporate income tax with a border adjustable, destination-based, cash-flow tax that would apply to all businesses. Expenditures for capital goods and the like would be immediately deducted (i.e. expensed), and net business interest would no longer be deductible. Like a VAT, the tax would be ‘border adjusted,’ the price of imports would not be deducted from cash flow and receipts from exports would not be included in cash flow. Although neither of these controversial proposals were included in the Trump proposals, as of now they still appear to be under consideration, at least as far as Chairman Brady and Speaker Ryan are concerned.

The argument in favour of denying interest deductibility, is that, with the expensing of capital goods and similar expenditures, granting business an interest deduction would essentially constitute a double benefit: once from the immediate deduction of costs whose benefits economically are realised over time, and again from the cost of money used to finance those investments. Last week’s Trump proposals do not seem to include either expensing for capital assets or a denial of interest deductibility. This may have been the result of the Trump administration’s discussions with prominent business leaders who generally were not enthusiastic about expensing and opposed the elimination of interest deductibility.

Nonetheless, given the president’s endorsement of moving to a territorial system of taxing US businesses on their non-US business income, there may still be a significant issue for interest deductibility. If offshore earnings will not be taxed, will interest expense allocable to that income remain deductible? If not, how will interest be allocated to such income? Currently, interest is allocated to foreign source income on the basis of US versus foreign asset values. It remains to be seen whether that system would be imported into the territorial system.

The Blueprint also included a provision that is like a subtraction-method VAT, with the result that business receipts from export sales and similar income would be excluded from taxable cash-flow, and purchases of imported goods and services would not be deductible from the tax base.

This treatment of imports and exports has been even more controversial than the proposal to eliminate the deductibility of business interest. It was not included in the Trump proposals and it has divided American industry into two competing groups: those opposed (largely retailers who are significant importers); and those in favour (largely significant exporters of industrial goods).

The principal objections to the BAT have been:

  • Many companies, currency traders and some business economists do not believe the conventional economic theory that predicts that the effects of the border-adjustable tax on the US dollar price of imports and exports will be eliminated through an appreciation of the US dollar. Under that theory, dollar-strengthening of 25% would offset the advantage of a 20% decrease in the price of US exports (attributable to their tax-free status) and the disadvantage of a 20% increase in the price of imports (attributable to the non-deductibility of the cost of imports).
  • There are practical concerns about how to tax direct sales, including internet sales, by sellers outside the US to US retail customers. Would shippers be required to collect a surrogate tax on these imports by retail consumers? Would the US attempt to tax the foreign sellers notwithstanding treaty obligations requiring the seller to have a US permanent establishment prior to taxation?
  • Certain export dominated industries and companies would be in a permanent loss position because their expenditures would vastly exceed their domestic receipts. Would these industries and companies be compensated by the government for their losses and/or be able to ‘sell’ their losses to taxable domestic sellers?
  • For financial institutions, the treatment of loans to and from foreign institutions that are not subject to tax becomes very complex, and has led some to believe that financial institutions generally would need to be excluded from the BAT.
  • Finally, there is the legal status of the BAT. Would it be an income tax covered by US tax treaties or would those treaties need all to be renegotiated? Would it be an illegal export subsidy or import tariff under the WTO agreements or would it be permissible under the WTO provisions governing the treatment of VAT on imports and exports?

As mentioned above, the Trump administration failed to embrace either the non-deductability of interest or the BAT in last week’s Trump proposals. Additionally, Senate Republicans were never really excited about either idea (and frankly may be relieved by their omission from the Trump proposals). However, Secretary Mnuchin and Director Cohn have said that they were still looking at alternatives on how to structure the BAT, while another Trump administration spokesperson indicated that the BAT might be revisited later in the process. Accordingly, the BAT proposal is not dead yet, particularly because Speaker Ryan has also indicated that he is open to revising the proposal and Chairman Brady has said he will still push ahead with it in order to make up for revenue lost from the other elements in the eventual tax reform bill as well as to promote American jobs as well.


Revenue losses which would increase the federal budget deficit will be an ongoing concern for bill drafters. Last week, Secretary Mnuchin said that the Trump administration’s plan ‘would pay for itself’ through economic growth. Many tax experts, however, say that it is not realistic to expect economic growth to cover the full cost. The budget deficit implications will be a big source of friction between the White House and Congressional leaders. In particular, the projected budget deficits may make it difficult or even impossible for tax reform to be enacted using the ‘reconciliation’ process mentioned above because it would then be vulnerable to a filibuster in the Senate. All of this sets up a potential intra-party struggle over the precise contours of the ultimate tax bill and how to offset the deep tax rate reduction envisioned by the Trump proposals.

In the event that the revenue raising components of the Blueprint package fail to find adequate support and drawing upon elements of both the Blueprint and the Trump Proposals, Congress will certainly have options that incorporate greater or lesser degrees of reform. To be sure, all of these alternatives have significant political and/or practical defects and many have been rejected in the past:

  • Congress could simply attempt to cut rates either by disregarding budget deficit consequences or by taking a classical 1986-style ‘broaden the base and lower the rates’ approach. However, a raid on the fisc would carry political costs. And base broadening has limited appeal in that the political cost of taking on entrenched pressure groups could be high and resulting rate cuts modest. President Trump’s approach has some of both. Eliminating individual deductions and credits go some of the way to offsetting a net tax cut that would still increase the budget deficit.
  • There could be bipartisan interest in a so-called ‘repat for roads’ deal. Under such a deal, a sweetener to the Democrats, some of the revenues from the repatriation of approximately $2.5 trillion in ‘deferred’ offshore corporate profits could be dedicated in whole or in part to infrastructure spending. Both the Blueprint and President Trump’s campaign tax plans had preferred rates for such a repatriation, and former House Ways and Means Chairman Dave Camp’s comprehensive tax reform plan in 2012 also reserved some revenue for infrastructure spending.
  • Congress could devise a hybrid version of territoriality with sufficient base-erosion protections to constrain revenue losses. This stylized territorial system could incorporate the lessons learned from the Camp tax reform plan. Another option from the Camp plan would have taxed all CFC income attributable to sales and service of intangibles to customers outside the United States at a reduced rate of 15%.
  • Senate Finance Committee Chairman Orrin Hatch has an as-yet unreleased proposal to integrate corporate taxes as favoured by Senate, possibly through a dividends-paid deduction. Chairman Hatch has suggested that the proposal is ‘portable’ and could be plugged into any larger reform package.
  • Other less likely proposals such as a VAT and a carbon tax have been mentioned by some as possible options, but as of now, both ideas have been rejected by the president.

What’s next?

Even before the Trump administration released the Trump proposals last week, Chairman Brady had begun to reach out to Democrats on the House Ways and Means Committee in order to attempt to bring them into the process. He also announced that hearings will be held in the Committee and/or in some of its Subcommittees, which is a departure from how the AHCA bill was handled. After the hearings, perhaps towards the end of June, but much more likely only after the Trump administration has weighed in with more specificality regarding its proposals, the actual bill language would be released. The Committee would then ‘mark up’ the bill (i.e. review the text and consider amendments offered by Committee members) in order to move to a Committee vote, and following that, to a vote on the floor of the House (perhaps before the August congressional recess).

The bill would then move on to the Senate, at which point it is impossible to predict what will happen. However, all of this makes it increasingly unrealistic that any legislation will be enacted by both the House and the Senate by the original goal of early August. This means that the earliest any tax reform legislation would be enacted would be later this year. Stay tuned for the next instalment.

The views above are those of the co-authors and do not necessarily represent the views of Sullivan & Cromwell LLP.