A mid-year tax legislation update

The House passed IRS reform legislation by voice vote and sent it on to the Senate. Subsequently, however, some Senate Democrats raised objections to a provision that would codify the present IRS Free File program. The House then passed a revised bill that omitted the provision, which was passed by the Senate and sent to the White House for President Trump to sign last week. Details of some of the IRS reform provisions were highlighted in this column in the May 2019 issue. Prospects for the revised bill look good, but it is always an issue whether a tax bill might get loaded up with additional provisions that could cause problems.

Approximately 30 tax breaks that had been given short-term extensions over a number of years expired at the end of 2017. There had been some debate as to whether those tax breaks would continue after the Tax Cuts and Jobs Act, but Congress extended them through 2017 in early 2018, resulting in some need to revise software systems and tax forms for the 2017 tax return filing season. Congress is again considering what to do with those expired provisions well after their expiration. The initial proposal had been to extend them retroactively for 2018 and preserve them for 2019. As time passes without enactment, however, the chances increase that many of those expired provisions will not be extended. Another issue that may push some of the tax breaks to the sidelines is that Democrats would prefer that any extension be paid for, but offsetting revenue-raisers appear to be in short supply. Besides a few individual tax breaks, most of the expired provisions relate to energy or to specific industries. Democrats have been working on a more simplified structure for energy tax breaks, focused on renewable energy, and that initiative might replace many of the energy-related expired tax breaks.

Lobbying activity continues in an effort to restore a number of these tax breaks, including credits for biodiesel and railroad track maintenance, but, as time passes without action, the number of expired provisions likely to receive retroactive extension, or any extension at all, continues to diminish.

While a number of errors have been identified in the TCJA, Democrats have been reluctant to help the Republicans correct errors in legislation that passed without Democratic input without getting something in return. That issue continues to be the impediment to passage of technical corrections. A “grain glitch” in the TCJA was corrected in budget legislation early in 2018 by giving something to the Democrats on low-income housing. A so-called “retail glitch” involving the depreciation of leasehold improvements, retail improvements and restaurant property (referred to as qualified improvement property under the TCJA) and an error in the dates applicable to changes to net operating losses are the two most substantive errors for which corrections are being sought. The repeal of the Kiddie Tax changes made by the TCJA, as proposed in the current retirement legislation in Congress, could also be viewed as a TCJA correction. Ways and Means Committee Chair Richard Neal, D.-Mass., may seek an expansion of the Earned Income Tax Credit and the Child Tax Credit as part of any bargain.

Some Republicans and Democrats from high-tax states are also pushing for repeal of the TCJA limit on the state and local tax deduction. However, this is viewed as a fix that would largely benefit higher-income taxpayers, and Democrats may not want to focus on that with the theme of the 2020 election campaigns being help for the middle class. There is also a bipartisan bill to restore a deduction for performing artists that was removed by TCJA.

In spite of the clear unintended consequences in the TCJA for qualified improvement property and net operating losses, movement on technical corrections does not seem to be a top priority in the House and might not get enacted in 2019.