David D. Stewart 0:03

Welcome to the podcast. I'm David Stewart, editor in chief of Tax Notes Today International. This week: so many bills, so little time. When we last checked in on Congress in August, at the top of the House's to do list were two record-breaking bills: the $3.5 trillion budget bill and the $550 billion infrastructure bill. Since then, committees in the House and Senate have been working on the reconciliation bill while the bipartisan infrastructure bill had been scheduled for a vote in the House this week, but that vote has yet to happen as of this recording on the morning of September 30th. On top of that with the federal fiscal year coming to a close, this brings the need for funding to prevent a government shutdown. Oh, and there's a debt ceiling issue that could lead to a default without legislation to raise it. So how is Congress handling the increasing pressure to pass legislation and where do the two big bills stand today? Here to talk about this, our Tax Notes Capitol Hill reporters, Doug Sword and Frederic Lee. Doug, Frederick, welcome back to the podcast.

Doug Sword 2:03

Nice to be here, Dave.

Frederic Lee 2:04

Hello, thanks.

David D. Stewart 2:05

All right, to begin, there's been a gradual ramping up of tensions in Congress over the last couple of months, over an array of legislation. We've got the reconciliation bill, the infrastructure bill, the need to raise the debt ceiling, and potential government shutdown. So where do we stand today?

Doug Sword 2:21

You're right, Congress has an awful lot on its plate, but they appear primed to remove at least one item from this jam docket. It looks like the Senate will pass a continuing resolution today and that the House will quickly follow suit. As we speak, it's the morning of September 30th and that's the last day of the federal fiscal year. So without a CR, as they're called, the government would partially shut down beginning tomorrow afternoon. Instead they're going to kick the can down the road to December 3rd and the continuing resolution covers all spending between now and December 3rd. And that's another deadline they'll have to hit because Congress has not successfully passed all of its 12 spending bills since 1996. So this is not unusual for them. Meanwhile, Treasury Secretary Janet Yellen told us this last week that the government runs out of money October 18th, after that they can't fully meet the obligations . This is a condition otherwise known as default , which has never occurred before. So they'll have to do something in the next couple of weeks on that. And also today, the House is scheduled to vote on the bipartisan infrastructure framework. Whether that will happen is still up in the air. Progressives and moderates are tussling over this. Progressive's want the infrastructure bill tied to their reconciliation bill. Moderates want to just move what is already there and already passed by the Senate and what happens could well impact the chances for reconciliation.

David D. Stewart 3:41

Well, let's start with that infrastructure bill. It was passed by the Senate a month ago, and it was supposed to come up for a vote this week. What is in this bill?

Frederic Lee 3:49

Yeah, so the infrastructure bill is directed at exactly that, it's hard infrastructure, roads, bridges, and the like in terms of paid for , part of the funding comes through ramped up reporting requirements for cryptocurrency. And another part is coming from the renewal of Superfund taxes. And that's an excise tax on several dozen chemicals that have been deemed hazardous. In terms of numbers, the crypto measure is expected to bring in about 28 billion over 10 years and the excise tax measure a little bit less, it should be bringing in about 14.5 billion. Now the infrastructure bill hasn't changed since the Senate passed it back in August. And the reason for that, there was a rule adopted by the House that blocked further amendments to the infrastructure bill not long after it passed in the Senate. So when that happened, hopes to amend the crypto provisions, one way or another, ended basically at least through amendment, which a lot of people saw was unfortunate because both those in the crypto sector and some lawmakers were really gunning to narrow the reporting requirements because of concerns that they were overbroad, especially regarding the word "broker," as it appeared in the bill text. Now we have to look at Senator Cynthia Lummis, she's from Wyoming Republican. She did say she wants a standalone piece of legislation to come to the Senate floor, before the end of this year, that would clearly define the term broker and other terms used in that space and the digital asset sector. I'm not sure if that's actually going to occur, but we're definitely going to be watching for it.

David D. Stewart 5:21

Now, there's been a lot of back and forth in the House over the infrastructure bill. What are the main conflicts that are delaying a vote?

Frederic Lee 5:27

Well, you mentioned that the infrastructure bill passed the Senate a month ago, well , there's this linking strategy that was used with the infrastructure in the reconciliation bills. It was established early on in the process by the House and Senate leadership and that's definitely played a role in the timing of the infrastructure bill and why it's actually landing right now. A group of democratic moderates , including Josh Gottheimer from New Jersey, a few weeks ago were pushing Nancy Pelosi to bring the parks and infrastructure package to the floor quickly after it passed the Senate, which led Pelosi to promise to bring the legislation to the floor by September 27th, which was this previous Monday. Plus they came out and said that the bill would come for vote on September 30th. House progressives have been saying in recent days that they'll actually vote against the smaller infrastructure bill without there being a vote on the more progressive reconciliation package. Now on the moderate side, we have Stephanie Murphy is a moderate Democrat she's in the House from Florida. She said yesterday that if the scheduled vote on the infrastructure bill were to fail or be delayed, there would be a significant breach of trust. So it's high stakes. So what we're really looking at is prominent factions of the Democratic party, really digging in their heels at a time when the chance to get these two bills through was really, really starting to narrow. You have to remember that the Democratic party coined itself as the "Big Tent Party," so that's one way to look at it. Moderates are prioritizing the infrastructure bill while progressives are really backing the reconciliation bill. And that's a large reason why it's shaking out the way it is.

David D. Stewart 7:29

All right , well, moving on to the reconciliation bill, the last time we spoke about it, this was a $3.5 trillion bill, but it seems to have gotten a smaller price tag since then. So what's the latest update there?

Doug Sword 7:42

Moderates in both the House and the Senate, but particularly in the Senate are holding up the bill. And that's because of the numbers. If you look at the Senate, there's a hundred members in the Senate, 50 are Democrats, 50 are Republicans. For most legislation, it takes 60 votes to beat a filibuster, but the reconciliation is an exception to that, just like judges are. It only takes a simple majority. So 50 senators along with Vice President Kamala Harris can pass a reconciliation bill 51 to 50, but that means not a single Democrats can alt from their party on a very controversial bill. Meanwhile, in the House, the majority is 220 to 212, which means if everybody shows up and Nancy Pelosi doesn't hold on to four of those people, the bill fails. And just last night, one of the Senate moderates, Joe Manchin, he's from West Virginia, he put out a statement reiterating what he said several time before, that he can't support 3.5 trillion. And he pointed out that Congress doesn't have a long- term funding plan to keep Social Security and Medicare afloat. And he just thinks it is "fiscal insanity" to create new and expanded social programs. Basically we don't know the number for the moderates, that they haven't said what they would go for, they have said that they want to roll back partially the Tax Cuts and Jobs Act, or at least Manchin has said that, but we don't have a number from them. And Democratic leaders acknowledged that the $3.5 trillion figure is something that's faded into the past. So the next couple of weeks of negotiation should be key and seeing what these numbers are.

David D. Stewart 9:17

You mentioned Joe Manchin, who are the other key players to keep an eye on during these negotiations?

Doug Sword 9:22

Kyrsten Sinema , she's a Senator from Arizona, she's a freshman . And she has been probably the second most frequent moderate voice on the Senate side, objecting to the size of this package. And over in the House, it's Josh Gottheimer from New Jersey who was the head of that nine moderate coalition that insisted on a vote on the infrastructure package. And then there's Stephanie Murphy. She is the co-chair of the Blue Dog Coalition, fiscally conservative Democrats. And she was the only member of Ways and Means to vote against their 1,900 page tax package back on September 15th. And then there's leadership House Ways and Means chair Richie Neal , who is really enjoying the point out that he has the only active piece of legislation out there, the 1,900 pages I just mentioned, that he believes will be the basis for negotiations going forward. And he's very much in lock step with House Speaker Nancy Pelosi. Over on the Senate, there's Senate Finance chair Ron Wyden, who has put out hundreds of pages of legislative texts over the last few months on international tax regimes and repealing carried interest and a lot of other things, and he's not going to get a lot of that into the bill and his partner over in the Senate, both being majority leader, Chuck Schumer and Senate Budget chair, Bernie Sanders, but increasingly it's Joe Biden. Biden had been a big player early on since most of this package comes out of his tax proposals from the campaign, but he'd been quiet in recent months, but in the last week, he's met a couple of times, at least with Sinema and Manchin, and he's met with Gottheimer and Murphy and other moderates. And what the progressives and he's trying to get them to start talking about an actual number, b ecause it's really impossible to negotiate when nobody will say what their number is.

David D. Stewart 11:09

Now you mentioned the chair of the Ways and Means Committee and the work that that committee has been doing on the tax provisions of this bill. Could you tell us about the important pieces of that?

Doug Sword 11:18

Sure. What is now moving through the House is this massive reconciliation bill it's all been put together. It's 20, almost 2,500 pages. Now almost 1,900 of that came from Ways and Means. So this is very much a tax and revenue bill. If you look through the Joint Committee on Taxation scoring of this, they have really scrunched up type and it's 12 pages and there's more than 140 separate scored tax provisions. So I'm going to mention some of the biggest tax increases. First is a big one, increasing the corporate income tax rate from 21 percent to 26.5 percent. That's a $540 billion over 10 years. That is the one that people are focusing on the most. There's also a bunch that are a hundred billion or more, in some cases quite a bit more. There's the increasing the individual top marginal tax rate from 37 percent to 39.6 percent. There's an increasing the top capital gains rate from 20 percent to 25 percent. There's a 3 percent surcharge on incomes over $5 million. And there's changes to all those international acronyms GILTI, BEAT, and FDII. Basically overhauling the international tax regime to bring in several hundred billion dollars. These are all over 10 years, by the way. And there's also a change to the net investment income tax known as the NIIT, or they will apply the NIIT to certain incomes of high-income households. And then they would make permanent the excess business losses limitation. So the owners of passthrough businesses couldn't write off as much as their losses as they could. One that isn't over a hundred billion , but I'm going to mention any way that you're going to double the taxes on tobacco and place a tax on vape products. And that comes out the very close to $100 million . I think about 98, maybe. Then there are the tax cuts. The biggest part of the tax cut package is $835 billion for social safety net tax cuts and that is mainly that the child tax credit expansion and that was in the American Rescue Plan in March that boosted the child tax credit to $3,600 for over the year for children under six and $3 , 004 for those under 18. But there's also increases in the earned income tax credit, the child and development care tax credit, and there's some sizable new caregiver tax credits. There's also a big group of green energy tax credits amounting to over $200 billion. And in that is a renewal of the tax credit for electric vehicles, which had been $7,500, but it will be $12,500 if this bill passes. And that's a little controversial because $4,000 of that is if the car was made by union workers in a union plant, so Republicans aren't too thrilled with that provision. Then there's over a hundred billion dollars of housing tax credits, there's rehabilitation tax credits and a big expansion of the low-income housing tax credit.

David D. Stewart 14:12

Now another option to pay for this reconciliation bill is new bank reporting requirement. Could you give some background on the bank reporting requirements and what they look like?

Doug Sword 14:21

Sure. This is another White House proposal, a large portion of what the White House wanted to use to pay for a reconciliation was increased tax collections at the Internal Revenue Service. Now they were looking at about $300 billion in tax collection increases by boosting the IRS budget. The IRS budget has been pretty flat for about 10 years. They've lost an awful lot of their auditing and enforcement muscle and President Biden wants to build them up again, but then even bigger portion, even bigger payday on tax collections would be over $400 billion by instituting a new bank reporting requirement . This would in effect be a 1099 for everything that goes in and out of your bank accounts . And that's because there's a tax gap between what people pay and what people are supposed to pay. It's estimated to be $700 billion [to] $800 billion a year. And there's very high compliance for people who have wage income because there's third-party reporting. Their employer tells the IRS how much they make, there's third-party verification on dividend and interest income, but there's no third-party verification largely on business income. Businesses fill out their tax returns and what the White House wants, they want their banks to report their gross inflows and gross outflows each year to see if that adds up to what they're reporting in income. Now, this was not included in the Ways and Means bill, the $600 threshold was too low for Richie Neil's tastes . There's a lot of talk about what that should be and what all may or may not have to be reported. And this has become a big issue for Republicans because they consider it to be very invasive and it's caught fire at the grassroots. There's an awful lot of complaints coming from not just Republicans, but the people who are worried about the data collection here.

David D. Stewart 16:08

In addition to these two record-breaking bills, there's also the prospect of a government shutdown without additional funding. So what is Congress doing to prevent that from happening?

Frederic Lee 16:17

So Senate majority leader, Chuck Schumer announced yesterday that Democrats and Republicans had come to an agreement on a CR. So that's a continuing resolution that would avoid a government shutdown. They're voting on it today, so it's expected that the House would take up the CR once the Senate has passed it. So in terms of the reconciliation and infrastructure bills, the shutdown is really another straw in the camel's back complicating all of these other items, sort of like the debt ceiling. Now the debt ceiling a looming government shutdown are related. But in my mind, the debt ceiling really is a larger issue because of risk of the United States defaulting. That would be the first time that ever happened in our nation's history. There's the sense that taking care of these issues, debt ceiling, and the government funding measure might clear the deck for these other two bills.

David D. Stewart 17:11

All right. Well thank you for being here. And we look forward to having you back when we know how this shakes out.

Doug Sword 17:16

Thanks for having us and it's going to be interesting to see how it shakes out.

Frederic Lee 17:20

Thank you very much.

David D. Stewart 17:23

Now coming attractions each week, we highlight new and interesting commentary in our magazines. Joining me now is Acquisitions and Engagement Editor in Chief Paige Jones. Paige, what will you have for us?

Paige Jones 17:33

Thanks, Dave. We are excited to announce that the winner of the 2021 Christopher E. Bergin Award for Excellence in Writing is Bailey Hans. Bailey’s paper, titled “GoFundMe: The Gift That Keeps on Giving, All Tax Season Long,” examines the tax consequences of donations made through crowdfunding platforms and explores ways to provide certainty to donors and donees in the absence of administrative or congressional tax guidance. Her paper can be found in this week’s edition of Tax Notes Federal, State, and International. Sadi Moradi received an honorable mention for his submission. Congratulations Bailey and Sadi! Also, in Tax Notes Federal, Paul Carman examines the terms commodities, securities, money, and foreign currency in relation to the tax treatment of cryptocurrency, and he argues that they should be subject to consistent definition and usage throughout the IRC. Thomas Nichols examines the effective repeal of section 199A for large passthrough enterprises as well as estates and trusts. In Tax Notes International, Marc Quaghebeur examines a case involving the Belgian tax authorities’ denial of a deduction for a reversal of write-downs that the taxpayer recorded before transferring to Belgium from Luxembourg. Steve Suarez analyzes the Federal Court of Canada’s recent judgment in Deans Knight, which addressed the tax treatment of noncapital losses and other tax deductions under Canada's antiavoidance rules. In Featured Analysis, Carrie Brandon Elliot explains the treatment of 25-percent-owned domestic subsidiaries in determining passive foreign investment company status, along with antiabuse rules and proposed safe harbors. On the Opinions page, Benjamin Willis and Jed Bodger make predictions for tax legislation, focusing on taxing income through realization at death and the elimination of section 1014’s basis step-up. And now for a closer look at what’s new and noteworthy in our magazines, here is Tax Notes State Editor in Chief Jeanne Rauch-Zender.

Jéanne Rauch-Zender 19:53

Thank you Paige. I'm here with Lynn Gandhi partner in business lawyer with Foley and Lardner and a member of the Tax Notes State advisory board. Welcome to the podcast Lynn.

Lynn Gandhi 20:02

Thank you for having me.

Jéanne Rauch-Zender 20:03

Let's chat about your recent Tax Note State article, "Zelinsky — Round 2 of the Convenience of the Employer Test." Would you provide listeners with a summary of your article

Lynn Gandhi 20:13

I'd be glad to. The article began when I happened to come across professor Zelinsky's latest filing in New York tax appeals regarding a petition for his 2019 year. Where again professor Zelinsky was raising constitutional challenges to the New York convenience of the employer test . Now I do not practice in New York. I have lived in Connecticut, so I think close to New York, but almost everyone has become a quasi New York knowledgeable about the convenience of the employer tax due to the pandemic and the implementation by other states, such as Massachusetts or the state of Ohio municipal tax, on these remote work convenience of the employer rules. So when I saw the petition, two things immediately sparked my mind. Number one, we know this remote work is here to stay. We know it's being used as a recruitment tool. How is the convenience of the employer rule really going to be applied going forward? But also how is it going to be applied during COVID? That's where we had a number of challenges, particularly the New Hampshire v. Massachusetts case. And then secondly, and I almost hate to admit this, I was surprised that professor Zelinsky was still with us and I hope that he's listening to this. I'm very delightful that he is still with us, but that he was still very active in these petitions. So that was the Genesis of the article. I decided to name it "Zelinsky — Round 2," because it is not that often where you get a case brought by the same pro se plaintiff on an issue that was litigated before at the New York Appellate Court, which is their highest level of judicial proceedings in New York state. But it's also a case that I teach to my students at my alma mater Wayne State University Law School in my state and local class. So it's kind of exciting to see once again, a case that you teach your students and you try to make it applicable to today, to have it come alive again with same plaintiff, same defendant, same issue, but what a different set of facts we have going on today.

Jéanne Rauch-Zender 22:30

So Lynn , would you say that essentially this new work from anywhere or COVID the pandemic spurred this article?

Lynn Gandhi 22:38

I would say it definitely helped , as everyone is aware, particularly with the denial of the petition by New Hampshire, in a case of original jurisdiction before the U.S. Supreme Court, this issue of when you are working from a state different than your assigned location, or even your residence , how is that going to be taxed by the state? And it's very multilayered . So the first question that I'm sure many of my colleagues had raised to them early on in the pandemic, when we were in the mid to late 2020, was "what do I do about my employees? Where do I withhold taxes?" So the first level, I like to call it is, "the employer compliance administrative where do I report payroll? Where do I have to do with holding?" And as our pandemic and crisis extended where states still had mandated work from home rules in place, Michigan being one of them. Then we had a great deal of questions from clients, "what do I do now for 2021?" And what became apparent was many companies, unless you had foreign workers, or you had people who traveled on a very regular basis where they would bill code their time when inputting their time or for foreign workers who needed work visas . A lot of employers had no idea where their employees even were . You sent everyone home, like how do you know if they're on the beach in Hawaii or in a ski chalet in Colorado? And there the problems then multiply for employers again. City taxes, business registration taxes, gross receipts taxes, all those taxes, not protected from like any type of Public Law 86-272. Even if the employees were engaged in solicitation, which most of them are not, the y're back office employees and now they have their location now in a different state. And if you are an employer and you do know, is that a taxes acknowledgment that indeed you now do have a form of nexus physical presence in the state. The second layer, which again, we all had a lot of questions on, is what about the employee? Where do they pay their taxes? And many, many employees are not used to the concept that your home state, most likely in the general scheme, taxes 100 percent of your global income. And if you're working in another state, the state where you're a non-resident, that states entitled to tax the income earned in that state. So many employees were not used to the idea and by the way, they have to tax the income that you earned in that state, and you hope that gives you a credit for taxes paid. So that's a whole another host of issues. Employees were not used to this concept that they might have to file multiple state tax returns. They do not understand the credit regime, if you're resonant in a income tax free state, what does that mean if you're working part -time in a state that does have an income tax. You get a credit for what? Because you have nothing to apply the credit to, or vice versa they're working in Florida, they don't understand why they have to pay taxes on their global income if it's not taxed out of state , because there is no credit. So a lot of inconsistencies in the credit regime let alone, we haven't even touched upon, what's the impact to the employer on their payroll factor for those 22 or so states that still have a payroll factor. What about all your incentive agreements or workforce development agreements where you committed to you have a certain level of payroll or employees in a state? So it quickly became clear that at this point, state tax practitioners were going to have to pivot a little and become labor and employment lawyers as well. Luckily at Foley, we have a great group of labor and employment lawyers. I didn't have to learn that side of the law, but I developed some close relationships with some of my Foley colleagues, all of whom I've met primarily remotely, particularly our labor and employment lawyers, because we have clients that needed to start moving people around. What did it mean for tax compliance? And then what did it mean for corporate income tax? So there's no doubt that these are the issues of the 22nd century, because we've seen this recruitment tool of "Work From Anywhere." I mean, I'll do a little CarMax crystal ball here, I think Work From Anywhere at some point will lose its flavor of the day attractiveness, particularly I think when companies who are not used to having US wide reporting requirements start to realize the administrative burden and cost of let's say 35 state matches income tax, withholding, W2 processing, you have local taxes, you have state unemployment insurance. Don't forget again, my friends in labor and employment have taught me, benefit packages. You know, you could have an employee that you didn't know is now completely out of network on your medical plan. You'll have one employee in the state. Now you have to join another one. You have to step in network in that state to get lower costs of medical care coverage for your employees . So I think it's really expensive unless you're set up and truly understand the administrative burden, but let's just go back to Mr. Zielinski, cause there's a couple of little teasers in the article I want to make sure the listeners don't lose. Interestingly professors Zielinski's case, tax your ed issue in this Zielinski round 2 is 2019. While it may seem like it's been a real, real long time, 19 was even pre pandemic. So this article is really attacking the year prior to the pandemic. And I think the arguments are strong, particularly from an external consistency argument. But if we look at the pandemic, New York put out some guidance as did many states that initially just said, "we won't treat your remote workers in our state as a physical presence for the business in the state, during this very unsettled times of mandated work closures." But no one really expected it to go on as long as it did. And it did. What I think states and cities did not expect was it to change how we work. So a lot of that interim guidance, which was just that, was guidance very few states actually changed rules or passed regulations that has now gone by the wayside because we're not in a mandated work from home. And so what does this mean for this test convenience of the employer, which I just personally believe is very artificial. It is a concept used in federal unemployment and many state unemployment regions follow it. In other words, what state would pay you benefits? Let's say you're traveling salesmen, it is the state of your home assigned work location that you would apply for unemployment benefits. But when we get into income tax or even business activity tax those concepts are just too kind of still stilted an old world. And if we found New York's interim guidance, they ended up in a circle where they said, "well, we'll count it as a day out of the state. If your employer made you go work there." Well, of course your employer made you go work from home. If your professor Zielinski in Connecticut, they mandate it, you couldn't come to the office. But then now what does that mean now when you're still at home because your school or university might say, "for health reasons, we want to limit class size or we're going to rotate in class sections again for health and safety and to reduce density." But what happens if his employer says, "you know what? The zoom worked out so well, we're going to open it up a remote learning opportunity for students around the world. And professor Zielinski you now don't have to work here." Then New York issues, guidance that says, "well, in that case, your home office only counts as an out-of-state office, if your employer has gone through some affirmative steps to set up a satellite office within your home." I think the guidance is circular. It really looks desperate. So I think the biggest questions in "Zielinski — Round 2" is, if they uphold the test and they uphold the internal external consistency test, how are they then going to grapple with it when it is the COVID error? And it might not be Zielinski round 3, it could be another employer files. It could be another employee files who perhaps has already received an assessment or perhaps has filed a claim for refund. So more to come.

Jéanne Rauch-Zender 31:19

It's a wonderful article and I'm so excited for the readers. Before I let you go, where can listeners find you online?

Lynn Gandhi 31:27

Online, you can find me of course at lgandhi@foley.com. You can find me on the Foley website and you can also find me on Instagram @taxxgoddess, that's two X's, two D's, and two S's.

Jéanne Rauch-Zender 31:41

Thank you so much for joining me today Lynn , it's been a real pleasure.

Lynn Gandhi 31:45

Thank you.

Jéanne Rauch-Zender 31:46

You can find Lynn's article online at taxnotes.com and be sure to subscribe to our YouTube channel Tax Analysts for more in-depth discussions on what's new and noteworthy in Tax Notes. Again, that's Tax Analysts with an S back to you, Dave,

David D. Stewart 32:01

That's it for this week. You can follow me online @TaxStew, that's S-T-E-W. And be sure to follow @TaxNotes for all things tax. If you have any comments, questions, or suggestions for a future episode, you can email us at podcast@taxanalysts.org. And as always, if you like what we're doing here, please leave a rating or review wherever you download this podcast. We'll be back next week with another episode of Tax Notes Talk.