Taxation & Representation - April 2019 #2

Brownstein Hyatt Farber Schreck


SPOILER ALERT: The following piece contains Game of Thrones and Avengers Endgame spoilers—nothing that you probably would not have guessed on your own. But, we would rather not be responsible for ruining a decade plus of anticipation!

A Tale of Three Starks. Between Game of Thrones and Avengers Endgame, it was an emotionally difficult weekend for fantasy fans. Heroes died, villains were vanquished and Starks saved the world in both stories.

Ruh Roh! It seems the tax world could use a hero of its own. Over the weekend, the Taxpayer First Act, a bipartisan non-controversial Internal Revenue Service (IRS) reform and modernization legislation, seemed to fall apart.

Reports emerged that companies that participate in Free File—like H&R Block, Turbo Tax and Intuit—are actively working to keep taxpayers from finding the program through internet search engines. The ProPublica story alleged that companies partnering with the IRS on the FreeFile initiative appear to be undercutting the program by diverting users away from free versions of the software.

This is not the first time the Free File program has come under scrutiny since the House passed the Taxpayer First Act on April 9. The Katies from California—Reps. Hill (D-CA) and Porter (D-CA)—expressed opposition to the codification of the Free File program in the bill. Both members criticized the provision for preventing the IRS from creating a free filing system of its own to compete with those offered by private companies. The bill passed, but Congress agreed to create a working group to study the IRS’ deal with the tax software industry on Free File.

At the time, Senate Democrats did not seem inclined to reopen the bill to change the way the Free File provision was written. Sen. Ron Wyden’s (D-OR) office noted that the IRS’s existing deal with the industry allows the agency to exit the contract and start its own program with 12 months’ notice.

All that has changed given the recent developments. Senate Finance Committee Democrats are no longer willing to fast-track the bill for approval through unanimous consent. A spokesperson for the committee’s ranking member, Sen. Wyden, said the Free File program would need to be changed in order to accommodate Democratic senators’ concerns.

However, if Senate Democrats now insist on removing the Free File provision or at least amending it, it is unclear how the dynamics will play out during a second vote.

With IRS reform legislation floundering and tax extenders legislation stalled, the odds that Congress will pass tax legislation before August recess are narrowing.

Tony? Arya? Are you out there?

There may still be hope, as Brownstein’s own Annie Starke may save the day. Congratulations to Annie on passing the bar exam—use your newfound powers to help save the tax universe!


Free Filing. A group of Senate and House Democrats have reintroduced a bill making it easier for taxpayers to file their taxes and reduce the cost of filing. The group, which includes presidential candidates Sens. Elizabeth Warren (D-MA), Cory Booker (D-NJ), and Bernie Sanders (I-VT), says the legislation aims to help low-income and minority taxpayers accurately and efficiently file their taxes and remove some of the stress surrounding tax-filing season. The bill would prohibit the Internal Revenue Service (IRS) from making agreements limiting the agency’s ability to offer free tax preparation and filing services to decrease its reliance on third parties.

On the House side, the bill’s sponsors include Reps. Katie Hill (D-CA), Jackie Speier (D-CA), Eleanor Holmes Norton (D-DC), Jamie Raskin (D-MD), Alexandria Ocasio-Cortez (D-NY), Tim Ryan (D-OH), Earl Blumenauer (D-OR) and Don Beyer (D-VA).

Rep. Katie Porter (D-CA), though not a sponsor of the legislation, is leading the most recent charge against Free File after reports emerged that program participants like Turbo Tax, Intuit and H&R Block purposefully kept people from finding the software through internet searches. In an April 29 letter to IRS Commissioner Charles Rettig, Porter demanded the agency investigate whether Free File providers deliberately steered customers away from free options. If the IRS finds this occurred, Porter argued customers should get refunds for the cost of tax preparation services.

Pass on Through to the Other Side. On April 11, Sen. Steve Daines (R-MT) introduced legislation to permanently codify the Tax Cuts and Jobs Act’s (P.L. 115-97) reduced pass-through tax rates before their expiration at the end of 2025. Daines’ bill mirrors companion House legislation—introduced on January 1 by Reps. Henry Cuellar (D-TX) and Jason Smith (R-MO)—that so far has garnered 15 Republican and 2 Democratic cosponsors. In his press statement, Daines said he supports the effort to ensure small businesses “are on equal tax footing as corporations.” While House legislation is unlikely to be passed by Democratic majority, over 100 business groups have expressed support for the legislation, including the Chamber of Commerce and National Federation of Independent Business.

Can’t Have One Without The Other. On April 9, a bipartisan group of senators—Sens. Debbie Stabenow (D-MI), Gary Peters (D-MI), Susan Collins (R-ME) and Lamar Alexander (R-TN)—introduced the Driving America Forward Act (S.1094). The bill would triple the number of vehicles eligible for the electric vehicle tax credit from 200,000 per manufacturer to 600,000. However, unlike currently law, which caps the credit at $7,500, the bill would reduce the credit to $7,000 for auto sales during the transition period until the manufacturer reaches 600,000 vehicles.

Senate Finance Committee Chair Chuck Grassley (R-IA) said he would be on board to move the legislation if the House attaches it to a list of expired tax benefits, known as extenders. However, outside the context of broader tax extenders legislation, Grassley said he would not support the bill.

Rep. Dan Kildee (D-MI), a member of the House Ways and Means Committee, introduced a companion bill in the House (H.R. 2256), which is currently cosponsored by nine Democrats and no Republicans. Although House Ways and Means Committee Ranking Member Kevin Brady (R-TX) has not yet weighed in on the proposal, he has strongly opposed a renewal of the tax credit in the past. In fact, last year he introduced legislation to eliminate the credit.

However, since addressing tax extenders is a major priority for some in both parties, Brady may be willing to engage in some horse trading to allow extenders to get over the finish line. Given that House Ways and Means Democrats have made a commitment to paying for any and all revenue losers like extenders, this legislation will continue to face an uphill fight in the lower chamber. Stay tuned, there are many miles to go before this thorny issue is resolved.


The Treasury Department released a second set of regulations April 17, providing more clarity on the opportunity zones provision included in the 2017 Tax Cuts and Jobs Act (P.L. 115-97). The regulations addressed the requirements to qualify as opportunity zone property and provided additional details about investment in qualified opportunity zones.

The proposed rules define qualified opportunity zone business property as tangible property used in a trade or business of the Qualified Opportunity Fund (QOF) if the property was purchased after Dec. 31, 2017. The guidance permits tangible property acquired after Dec. 31, 2017, under a market rate lease to qualify as “qualified opportunity zone business property” if during substantially all of the holding period of the property, substantially all of the use of the property was in a qualified opportunity zone. The new guidance clarifies the “substantially all” requirement for the holding period and use of the tangible business property:

  • For use of the property, at least 70% of the property must be used in a qualified opportunity zone.
  • For the holding period of the property, tangible property must be qualified opportunity zone business property for at least 90% of the QOF’s or qualified opportunity zone business’s holding period.
  • The partnership or corporation must be a qualified opportunity zone business for at least 90% of the QOF’s holding period

While the second tranche of proposed rules address some issues, investors are still left with questions on what is considered an asset under the legislation and how the 90% threshold will be computed. The proposed guidance only specifies a penalty for funds that fail the test that determines whether at least 90% of assets are held in “qualified opportunity zone property.”

The proposed rules also asked for comments on the “substantial improvement test.” This test requires funds that acquire an existing property or business to invest an amount at least equal to the price paid for the asset. The IRS conceded the threshold is difficult to meet for businesses with diverse assets and are looking for a way to simplify the process. The IRS issued a request for comments on how the agency should track investments and the effects on opportunity zones.

According to a Treasury Department official, more regulations are imminent and will likely address anti-abuse rules and the decertification process.

Sens. Tim Scott (R-SC) and Cory Booker (D-NJ) also plan to introduce a bill once Congress returns on April 29 to extend the incentive for investors who take advantage of the opportunity zones after 2019.

In other opportunity zone news, the Department of Housing and Urban Development (HUD) is asking for public input on financing the zones. On April 12, HUD Secretary Ben Carson said the department is “looking to better understand how HUD can better tailor its policies and help opportunity zones create more positive economic outcomes for the millions of Americans that live in these areas.”


IRS Gets on IT. On April 18, the Internal Revenue Service (IRS) announced plans to spend between $2.3 billion and $2.7 billion over six years to update its information technology systems. According to its Integrated Modernization Business Plan, the agency will tackle cybersecurity and data protection concerns alongside boosting tax enforcement and the taxpayer experience. The IRS—which is currently operating on systems that rely on technology dating back to the 1950s—intends to improve or retire at least 20 systems, programs and applications over two phases. Among some of the targets for improvement is the agency’s primary fraud detection system, the Return Review Program, which lawmakers and IRS officials have identified as a crucial aspect of the agency’s enforcement capabilities. The plan also includes the development of an enterprise cloud ecosystem—a transition members of Congress have called on the agency to implement. In the White House’s budget proposal for fiscal year 2020, the IRS requested $290 million towards this goal.

ID, Please. According to a report from the Treasury Inspector General for Tax Administration (TIGTA) published last week, the Internal Revenue Service (IRS) “is making progress” on preventing fraudulent activity on publically available internet services, such as applications for the Get Transcript and Identity Protection Personal Identification Number (IP PIN) services. After reviewing 52 public applications, TIGTA concluded the following:

  • 14 high-risk services were secured.
  • 8 moderate-risk services were secured.
  • 26 services were not optimal, but “TIGTA found that the IRS’ rationale for maintaining them at the current level was reasonable" given the agency’s ability to “mitigate risks.”
  • 4 applications were offline or retired.

Although the IRS has improved, according to TIGTA, the agency has not yet applied new federal standards to protect the publically available services. In response, the IRS said the agency will determine the most appropriate method to defend against fraud, including aligning with federal standards and potentially instituting alternatives where suitable.


Tax Day with Trump. On April 15, President Trump traveled to Burnsville, Minnesota to attend a tax roundtable with a trucking company to talk about how the Tax Cuts and Jobs Act (P.L.115-97) has helped their pocketbooks and boosted the overall economy. Minnesota is an important state for Trump in the 2020 elections given his narrow margin of defeat in 2016.

In a meeting at Nuss Truck and Equipment—a company that gave its 350 employees bonuses thanks to the TCJA—President Trump highlighted the record low unemployment numbers and falling unemployment claims. The president also noted how the TCJA doubled the child tax credit and eliminated the death tax. Although most Americans received a tax cut because of the TCJA, polls show that many taxpayers do not feel as though they have actually seen a reduction in their tax bills. As a result, the law remains unpopular with 49% of voters opposed to the law compared to 36% of voters in favor of it.

Loan Shark. Last week, 2020 candidate Elizabeth Warren (D-MA) introduced a policy proposal to write off federal student debt. Warren’s framework would eliminate up to $50,000 in debt for households making less than $100,000 annually, while households making up to $250,000 would be eligible for partial debt cancelation that is phased out by “$1 for every $3 in income above $100,000.” Households earning above $250,000 would not be eligible for any debt cancelation. Furthermore, the plan includes in a Universal Free College proposal that would recognize the “basic public good” associated with being able to attain a public college education.

The proposal would be paid for by the taxes imposed by Warren’s recently-proposed Ultra-Millionaire Tax. Specifically, the estimated $1.25 trillion price tag—comprising the costs of the debt cancellation and proposed Universal Free College program—would be offset by portions of the $2.75 trillion revenue derived from the 2% wealth tax applied to the “75,000 families with $50 million or more in wealth.” Warren said the proposal would eliminate debt in some form for more than 95% of qualified Americans, while researchers at Brandeis University and Arizona State University estimates cite a total cancelation of student debt for roughly 75% of U.S. households.

While Elizabeth Warren has exceeded all of her competitors in pumping out policy proposals, this one especially attempts to resonate with a massive block of voters. Currently, federal student debt market has ballooned to over $1.5 trillion and the Education Department cites over 44 million Americans beholden to federal student loans.


  • Wrap it Up. Regulators at the Treasury Department and Internal Revenue Service have designated June 22 as the official deadline to finalize rulemaking for the 2017 Tax Cuts and Jobs Act (P.L. 115-97). Any regulations introduced before the deadline—roughly 18 months after the law’s passage—will be retroactively applied to Jan. 1, 2018.
  • Tax Refunds Recap. With the April 15 Tax Day having come and gone, the IRS reported that average tax refunds decreased by 2% in 2019 versus 2018. The total value of refunds decreased by 1.7% while the average refund decreased from $2,780 in 2018 to $2,725 this year.
  • On the BEAT. The Joint Committee on Taxation (JCT) released a report on April 11 entitled “Overview Of The Base Erosion And Anti-Abuse Tax: Section 59A.” The report provided a comprehensive summary of the Base Erosion and Anti-Abuse Tax (BEAT) with several examples how its application may effect businesses.
  • A Rare Blessing. On April 25, the Internal Revenue Service’s Chief Counsel announced the appointment of Peter Blessing to be the Associate Chief Counsel, International, at the agency. Blessing would be responsible for “coordinating and directing all activities of the international organizational component” at the Office of the Chief Counsel.
  • Prayers for Parking. A former tax counsel for House Ways and Means Ranking Member Kevin Brady (R-TX) expressed regret that the committee didn’t have “more time to have thought…through” Sec. 512(a)(7) of the Tax Cuts and Jobs Act imposing a new “church parking” tax. The aide, John Schoenecker of the Senate Finance Committee, noted that many provisions went through months of planning and consideration except for the controversial 21% tax on select nonprofit employee benefits.


  • Sullivan Weighs in on Tax Reform. Russ Sullivan gave Bloomberg Government the lowdown on the prospects of the IRS reform legislation in the Congress. Find out more here.
  • The Grand Opportunity Zone Hotel. Brownstein’s Nicole Ament provides perspective on how the tax benefits of opportunity zones has affected hotel developers.
  • Crystal Clear. Binyamin Appelbaum of the New York Times discusses why everyone’s income taxes should be public to hold politicians accountable and to reduce both fraud and income inequality. Read more here.
  • Whose House? William Gale of the Brookings Institution writes in the Wall Street Journal why the changes to the mortgage-interest deduction in 2017 were an effective first step to modernize the economically inefficient subsidy.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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