Taxation & Representation, February 2019

by Brownstein Hyatt Farber Schreck

Brownstein Hyatt Farber Schreck


Now just over a month into the 116th Congress, the tax writing committees have been formally announced, and we at Brownstein want to introduce you to all of the new faces. This week, we feature new House Ways & Means Committee members Brendan Boyle (D-PA), Drew Ferguson (R-GA), and Steven Horsford (D-NV).

  • Rep. Brendan Boyle (D-PA-02). Rep. Brendan Boyle is the current representative for Pennsylvania’s 2nd Congressional District. He previously served the state’s 13th congressional district from 2015 to 2019, prior to the state Supreme Court’s decision to redo the Pennsylvania’s congressional map. Before serving in Congress, Rep. Boyle was a member of the Pennsylvania House of Representatives from 2008 to 2015. Regarding tax policy, Rep. Boyle has supported higher taxes on the wealthy and a more middle-income friendly tax code. Rep. Boyle voted against the Tax Cuts and Jobs Act in 2017. Rep. Boyle will serve on the Select Revenue Measures, Oversight, and Social Security subcommittees.
  • Rep. Drew Ferguson (R-GA-03). Rep. Drew Ferguson  joined Congress in 2017 after defeating Angela Pendley in the 2016 general election. Previously, Rep. Ferguson  served as the Mayor of West Point, Georgia. Rep. Ferguson voted in favor of the Tax Cuts and  Jobs Act of 2017, stating that the bill would provide middle-income tax relief, simplify the tax code, and spur economic growth. At Ways and Means, Ferguson will serve on the Select Revenue Measures (previously Tax Policy) and Social Security subcommittees.
  • Rep. Steven Horsford (D-NV-04). Rep. Steven Horsford rejoined Congress in January 2019 after defeating Rep. Hardy (R). Previously, Rep. Horsford was in Congress from 2013-2015 after serving as a senator in the Nevada Senate. Before being elected, Rep. Horsford served as CEO of the Culinary Training Academy, an employment training and career preparation organization, while also serving on the Southern Nevada Workforce Investment Board. Historically, Rep. Horsford has been supportive of raising state sales taxes and business payroll taxes, and has also expressed support for a tax code that makes the U.S. more competitive internationally. Rep. Horsford voted against the Tax Cuts and Jobs Act. Rep. Horsford will serve on the Health subcommittee in the 116th Congress.


Extend a Helping Hand. Despite failing to move at the end of 2018, bipartisan talks on tax extenders continue behind the scenes. Last week, Senate Finance Committee Chair Chuck Grassley (R-IA) said legislators are considering attaching an extenders package to the appropriations legislation being crafted to avert another government shutdown. Currently, this is the only legislative vehicle on which to move extenders legislation. Senate Republican Whip John Thune (R-SD) also said that tax extenders might get attached to the spending package if negotiators also decide to address matters such as extending the federal debt limit or raising the budget caps for two more years. On the House side, Ways and Means Chair Richard Neal (D-MA) indicated that Democrats are discussing the issue, making bipartisan cooperation more likely. However, the bill is unlikely to pass Congress in time for taxpayers to claim tax extenders benefits this year. In order for taxpayers to claim tax extenders on their 2018 tax returns, the provisions would need to be retroactively applied for last year.

As a reminder, the Bipartisan Budget Act of 2018 extended 32 expiring provisions for one year (2017) at a cost of $15 billion.  According to an Oct. 25 Congressional Research Service report, 28 provisions are expired at the end of 2017.

Hearings on Hearings on Hearings. Now that Congress is not consumed with the partial government shutdown, lawmakers have time to turn to their legislative agendas. House Ways and Means Committee Chair Neal (D-MA) wasted no time in getting to work and has already planned a number of hearings that are expected to draw significant attention. Most notably, on Feb. 6, Ways and Means will look into one of Neal’s top priorities—retirement savings. In the Senate, Finance Committee Chair Chuck Grassley (R-IA) has not yet decided what bipartisan multi-employer plan (MEPs) legislation to consider this year. After indicating that this is an area of particular focus, he plans to meet with Sen. Rob Portman—the chair of the subcommittee overseeing retirement policy—to explore potential paths forward.

Later this week, the Ways and Means committee will also consider potential legislative proposals to go after President Trump’s tax returns. Since winning the Ways and Means gavel, Neal has remained reluctant to make any drastic moves related to President Trump’s returns, despite a strong sense of urgency from the left. Neal is currently working with attorneys from the Joint Committee on Taxation “to determine the appropriate legal steps to go forward with this unprecedented request.”

Other committees are getting in the tax game as well, including the House Appropriations Committee, which will be holding a hearing on stewardship of taxpayer money. The House Committees on Oversight and Reform and House Administration have plans to hold separate hearings on the Tax Cuts and Jobs Act.

The IRS will also be busy this month, as it announced plans to hold hearings on both Global Intangible Low-Taxed Income (GILTI) and Opportunity Zones next week. The agency will first consider GILTI on Feb. 13 and Opportunity Zones the following day.

Raise the Roof. House Ways and Means Committee Chair Richard Neal (D-MA) has asked Treasury Secretary Steven Mnuchin to update the committee on the debt limit. In a Jan. 29 letter to the Treasury Secretary, Neal asked Mnuchin to provide an outline of the “Administration’s plans and timing to ask Congress for an increase in the debt limit.” Neal blamed the TCJA for the drop in federal revenues, saying there was a 0.8 percent drop between 2017 and 2018.

As a refresher, the debt ceiling was suspended in the Bipartisan Budget Act of 2018. The suspension period expires after March 1, 2019. Lawmakers need to extend the borrowing limit before this date in order to avoid the Treasury Department’s use of “extraordinary measures” to fund the government’s financial obligations on a temporary basis. According to a Jan. 30 Treasury Department press release, it is too early to determine how long extraordinary measures will allow the government to meet its obligations before defaulting. The Bipartisan Policy Center estimates that Treasury will not be able to fully fund the government past mid-summer 2019.

Source: The Peterson Foundation
Source: Peter G. Peterson Foundation

Thune Reintroduces Death Tax Repeal. Early last week, Senate Republicans reported they would be reintroducing a repeal of the estate tax. Senate Majority Whip John Thune (R-SD) along with Senate Majority Leader Mitch McConnell (R-KY) and Senate Finance Chair Chuck Grassley (R-IA) have introduced the Death Tax Repeal Act of 2019. This bill would repeal the estate tax, providing relief to family farms and other business that are affected by the 40 percent tax, according to the bill’s sponsors.  On the House side, Rep. Jason Smith (R-MO), on the Ways and Means Committee, also released companion legislation, which former Chair Kevin Brady (R-TX) has championed in the past. The bill is unlikely to move in the Senate as a standalone measure as it would require 60 votes to pass. The announcement comes on the heels of several Democratic senators proposing wealth taxes including Senators Bernie Sanders (I-VT) and Elizabeth Warren (D-MA).

Repealing the estate tax was on the table during tax reform negotiations in 2017, but the provision was not included in the final package.


IRS to Delay End of Tax-Transcript Fax Service. The IRS announced that it plans to end its tax-transcript fax services on Feb. 4 as a fraud protection measure. In response to backlash from taxpayers and tax preparers, Senate Finance Committee Chair Chuck Grassley (R-IA) and Ranking Member Ron Wyden (D-OR) wrote a letter to the agency asking that IRS Commissioner Charles Rettig consider delaying the end of the program. Sens. Grassley and Wyden said that without alternatives to the faxing service, tax practitioners would not be able to effectively assist their clients’ needs. The AICPA also echoed the Senate Finance Committee’s concerns, saying that the end of the program would complicate tax filing. The IRS has agreed to review options for a new timeframe to end the program.

Here We Go Again. Earlier today, the Senate Finance Committee approved Michael Desmond, President Trump’s choice for IRS chief counsel, 26 to 2. The two votes against Desmond were cast by Sens. Bob Menendez (D-NJ) and Sheldon Whitehouse (D-RI). Although President Trump formally tapped Desmond for the post in March 2018, the Senate failed to approve him by unanimous consent before the nomination expired at the end of the term. Under unanimous consent proceedings, all Senators are required to agree to move a nomination. However, Sen. Menendez expressed frustration with the Treasury Department’s correspondence with Senate Finance Committee Democrats regarding donor disclosures and transparency with state and local tax provisions.


Estate of the Art.

On Thursday, Senator Bernie Sanders, in what is being framed as a precursor to a 2020 presidential run, announced the For the 99.8 Percent Act, a tax plan that adjusts the rates of the federal estate tax and institutes several provisions targeting loopholes in gift taxation. Under the plan, Americans inheriting more than $3.5 million from a deceased party—0.2 percent of the population—would be subject to a new estate tax structure ranging from 45 to 77 percent, depending on the size of the inheritance. The legislation would strengthen “generation-skipping” taxes aimed at preventing the avoidance of gift and estate taxes, while enforcing limitations to the gift tax’s annual exclusions. Altogether, the plan cites a $2.2 trillion estate tax obligation for the 588 American billionaires who would be subject to  the maximum estate tax liability, and a further $315 billion in revenues over the next decade. Though, this is far short of the $32 trillion in revenue needed to pay for Sanders’s “Medicare for All” proposal.

The Sanders tax plan signals a shift to the left on taxing the wealthy within the Democratic party. Presidential candidate Senator Elizabeth Warren (D-MA) proposed a 2 percent millionaire and 3 percent billionaire tax two weeks ago, while progressive sparkplug, Rep. Alexandria Ocasio-Cortez (D-NY), made headlines in her first weeks in office by proposing a 70 percent marginal tax on individuals making more than $10 million annually. While economists and policymakers continue to hash out the impact and viability of these policies, the growing chorus of “tax the wealthy” looks to be a mainstay with Democrats going into the 2020 elections.


Gimme My Money. Now a little over a week into the new tax season, the IRS reported that the first round of refunds could be sent out as early as this week. The agency noted that the part of the agency handling tax filing was never actually shuttered during the shutdown, but that training was delayed for several customer correspondence services.

Senate Finance Subcommittee Roster. Sens. John Thune (R-SD) and Mark Warner (D-VA) were announced as leaders for the Senate Finance Subcommittee on Taxation and Oversight in the 116th Congress. The committee is rounded out by seven Republicans—Sens. Mike Crapo (ID), Mike Enzi (WY), John Cornyn (TX), Richard Burr (NC), Johnny Isakson (GA), Rob Portman (OH) and Pat Toomey (PA)—and five Democrats—Sens. Bob Menendez (NJ), Tom Carper (DE), Ben Cardin (MD), Michael Bennet (CO) and Sheldon Whitehouse (RI).


  • Banks in Deep Waters. Now that Maxine Waters (D-CA) has taken over the House Financial Services Committee, the committee is expected to pursue oversight strongly. Find out more.
  • Partial Shutdown Ended…Partially. Republicans and Democrats were able to settle on a continuing resolution. Watch Brownstein’s Nadeam Elshami’s take on MSNBC.
  • Red Flag Returns. With all the changes in tax law, things can get pretty confusing. Get to learning about the red flags on your returns.

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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