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After years of false starts, the passage of a major tax legislation package next year is looking increasingly likely given the election of Donald Trump and unified Republican control of Congress. While lawmakers and commentators agree that something called “tax reform” will move next year, a number of fundamental questions have been left unanswered as to what legislation might look like. Below we review the most critical outstanding questions on the shape tax legislation might take in 2017.
1. Will tax reform be revenue-neutral or a substantial tax cut?
2. Will tax reform be passed on a bipartisan basis or through budget reconciliation?
3. How will lawmakers reform the international corporate tax system?
1. Will tax reform be revenue-neutral or a substantial tax cut?
Perhaps the most fundamental question for tax reform is whether lawmakers are planning to pass revenue-neutral, revenue-positive or revenue-losing legislation next year. While revenue-positive reform seems to be off the table, there are mixed signals as to whether lawmakers will pursue a revenue-neutral or revenue-losing package.
For his part, Republican Chairman of the Ways and Means Committee Kevin Brady has repeatedly said that House Republicans will pass a revenue-neutral package. This claim is belied by the fact that the tax reform blueprint on which Brady and House Republicans are basing their efforts would lose an estimated $4 trillion over 10 years. In a fact-based world, this would mean that Republicans must either rewrite substantial portions of their proposal to raise more revenue or abandon their revenue-neutral goal.
However, Brady has created some wiggle room for Republicans in how he defines “revenue-neutral.” First, Brady has said that he would use dynamic scoring in designing a revenue-neutral package. This means that a tax package could lose substantial revenue under traditional scoring methods, and still be scored as revenue-neutral by dubiously claiming economic growth will partially offset the cost of the tax cuts. Brady has also indicated that he will seek revenue-neutrality only over the next decade, which could allow him to use one-time revenues from a repatriation holiday to conceal the longer-term fiscal irresponsibility of his plan.
While House Republicans have at least paid lip service to the goal of revenue-neutral reform, President-elect Trump has long advocated a substantial tax cut. For example, Trump said during one of the presidential debates that his tax cut would be the “biggest since Reagan.” Backing this up, Trump’s revised tax plan proposed during the campaign would cut taxes by $4.8 trillion over 10 years.
Given that Republicans have enough votes to pass a package without Democratic support (as discussed below), the big question facing tax reform could be whether Republicans can reconcile Trump’s call for a substantial tax cut and many congressional Republicans’ call for a revenue-neutral (however defined) package.
2. Will tax reform be passed on a bipartisan basis or through budget reconciliation?
The last major tax reform bill, the Tax Reform Act of 1986, was famously passed on a bipartisan basis. For the past thirty years, lawmakers have unsuccessfully sought to replicate this success. With Republicans now in control of the White House and Congress, the question is whether they will seek to pass reform along party lines or by pushing for a bipartisan bill.
Republicans leaders are giving mixed signals on this point. Senate Republican Majority Leader Mitch McConnell and Senate Finance Committee Chairman Orrin Hatch have both indicated their desire to pass a bipartisan package, as has House Ways and Means Chairman Brady. Republican leaders in the Senate have also indicated that they will pass a pair of budget resolutions that will allow them to pass tax reform (and Obamacare repeal) through a process called budget reconciliation, which would allow Republicans to avoid a Democratic filibuster and pass tax reform through the Senate on a slim party-line vote.
President-elect Trump himself has not specified a preference on the issue, but one of his economic advisers has suggested that combining corporate tax reform and infrastructure spending into a single bill would garner bipartisan support. A variety of bipartisan proposals would use revenue generated from a tax on the $2.5 trillion in earnings companies are holding offshore to pay for new infrastructure spending. This approach faces challenges, since many Republicans do not support new infrastructure spending and the tax credit-driven approach proposed by Trump is already being heavily criticized by Democratic policy analysts.
The key advantage of pursuing the budget reconciliation approach for Republican leaders is that they would not have to compromise with Democrats. On the other hand, the use of budget reconciliation would have two disadvantages. First, reconciliation bills prohibit provisions that do not affect revenue or spending. This restriction could exclude many of the transition and enforcement provisions that are required to make comprehensive tax reform legislation work. Second, budget reconciliation legislation may not result in revenue losses outside the ten-year budget, which the Republican proposals almost certainly would. To get around this requirement, Republican lawmakers could allow the tax reform legislation to expire after 10 years, which is the method they took to pass the revenue-losing Bush tax cuts in the early 2000s. However, this approach creates uncertainty in the tax code and opens the door for Democratic lawmakers to roll back the tax reform package when it expires, as happened in 2012 with the Fiscal Cliff Deal.
3. How will lawmakers reform the international corporate tax system?
While the broad contours of different Republican tax reform plans match up in many cases, these plans diverge sharply on reforming the international corporate tax system.
The House GOP plan proposes the most radical change in that it would shift our corporate tax system from a residence-based system to a destination-based one. The plan would exempt all exports of goods and services from taxation, while at the same time applying the tax to all goods and services imported into the United States. The key problem with this proposal is that it would almost certainly violate international trade rules and bilateral tax treaties with countries around the world. In addition, this approach is already raising the ire of retail and other major companies that depend on imports, which would face large tax increases under the new system. The question with this approach will be whether House tax writers will be able to convince enough lawmakers and the new administration to go along with this untested and complex new approach to international taxation.
In the Senate, Finance Committee Chair Orrin Hatch is working on a corporate integration proposal that he has pitched as the best approach to make our tax code more competitive in the international arena. The main feature of his plan would be to allow companies to take a deduction for dividend payments to shareholders. Hatch argues that a dividend deduction would be advantageous because it would make our tax system less dependent on taxing corporations directly and companies could wipe out any taxes owed on repatriated funds by simply issuing a dividend with the money. The main problem with this approach is that about two-thirds of dividend income goes to tax-exempt entities, meaning Hatch’s proposal will either need to eliminate the very popular tax advantage given to these entities to make up for lost revenue or else allow a huge portion of corporate income to go entirely untaxed.
A third approach advocated by President-elect Trump in his initial tax plan and the Democratic Ranking Member of the Senate Finance Committee Ron Wyden is to move the U.S. to a full worldwide tax system by ending the ability of corporations to defer paying taxes on their foreign profits. Ending deferral would be the ideal way to reform the international tax system because it would eliminate the ability and incentive for corporations to avoid taxes by shifting their profits into offshore tax havens. In his revised tax plan, Trump removed language advocating an end to deferral, but at the same time left the door open to this approach by not specifying a preferred alternative approach to international taxation.
While not preferred by any of the major tax writers at the moment, another frequently-discussed change to international tax rules would be to shift our code to a territorial tax system, in which corporations owe no U.S. taxes on their foreign profits. Moving to a territorial tax system would be disastrous for the corporate tax system because it would dramatically increase the incentive for companies to shift their profits offshore to completely avoid U.S. taxes on these profits. The amount of damage done to the tax base and resulting revenue loss would depend on the extent to which lawmakers pair this change with anti-base erosion measures. For example, in proposing a shift to a territorial tax system, President Obama proposed pairing this system with a minimum tax, which would help prevent companies from paying extremely low tax rates by shifting their profits into tax havens. Similarly, former Republican Chairman of the Ways and Means Committee Dave Camp proposed a number of important measures that would substantially limit the base erosion from the movement to a territorial tax system. Some form of a territorial tax system will likely be the fallback option if lawmakers reject the other approaches being pushed now.