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January 25, 2019

PARTIAL GOVERNMENT SHUTDOWN
President Trump, Congress Agree to 3-Week Shutdown Reprieve As Negotiations Proceed Over Border Security

TAX POLICY
Treasury Releases Highly Anticipated Final Regulations on New Pass-Through Deduction


PARTIAL GOVERNMENT SHUTDOWN

President Trump, Congress Agree to 3-Week Shutdown Reprieve As Negotiations Proceed Over Border Security  

President Trump today announced an agreement with congressional Democrats to reopen the federal government for three weeks—under the condition that negotiations proceed over border security, including his demand for a wall on the Mexican border.

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After announcing the agreement, President Trump added, “We really have no choice but to build a powerful wall or steel barrier.  If we don’t get a fair deal from Congress, the government will either shutdown on Feb. 15 again or I will use the powers afforded to me under the laws and constitution of the United States to address this emergency.”
(C-Span, Jan. 25)

  • The short-term agreement comes after two bills in the Senate to reopen the government failed yesterday, largely along party lines.  Today’s agreement would pave the way for Congress to quickly pass a Continuing Resolution (CR), restoring operations to approximately 25 percent of government agencies affected by the shutdown and providing back pay for 800,000 federal workers who have been furloughed or told to report to work without pay. 
  • The agreement would allow funding for agencies affected by the shutdown to continue at current levels through Feb. 15—including the Department of Homeland Security (DHS), which oversees border and immigration issues (such as the EB-5 investment program).   The deal would also require negotiations to proceed between the House and Senate over a full-year DHS funding bill that would address all aspects of border security.   
  • After announcing the agreement, Trump added, “We really have no choice but to build a powerful wall or steel barrier.  If we don’t get a fair deal from Congress, the government will either shutdown on Feb. 15 again or I will use the powers afforded to me under the laws and constitution of the United States to address this emergency.” (C-Span, Jan. 25)
  • The Senate approved the funding legislation tonight by a voice vote. The House followed, passing the CR by unanimous consent and sending the bill to President Donald Trump for his signature.  (The Hill and CNN and Associated Press, Jan. 25)
  • The reprieve comes as airports along the East Coast reported delays today due to a lack of air traffic controllers. The Federal Aviation Administration (FAA) reported flight delays to LaGuardia Airport in New York, Newark’s Liberty International Airport in New Jersey and Philadelphia International Airport. (FAA Statement, Jan. 25)
  • Earlier this week, three aviation unions — the National Air Traffic Controllers Association, the Air Line Pilots Association and the Association of Flight Attendants-CWA — issued a statement citing the shutdown’s increasing threat to air transportation safety.  “We cannot even calculate the level of risk currently at play, nor predict the point at which the entire system will break.  It is unprecedented,” according to the statement. (AFA news release, Jan 23)
  Energy Star Building Partner

During the shutdown, the Environmental Protection Agency (EPA) deactivated the website of its Energy Star program. The Roundtable’s Sustainability Advisory Policy Committee (SPAC) has worked closely with EPA on both their Energy Star whole-building and tenant-space labeling programs.

  • The shutdown also posed a risk that payments by federal tenants to office owners could not be met. The General Services Administration (GSA), which makes the government's rent payments in arrears after the end of the month, faced the repercussions of the shutdown by posting a message on its website to landlords.  The GSA stated it "is aware of concerns from the Lessor community regarding GSA's ability to make timely rent payments," and "is diligently exploring all available options."  (Bisnow, Jan. 18)  A map showing the GSA’s lease footprint illustrated the potential impact of the shutdown, as the agency rents over 187 million square feet for federal workers and business. (Bloomberg, Jan. 4)
  • During the shutdown, the Environmental Protection Agency (EPA) deactivated the website of its Energy Star program.  The deactivation could impact local-level regulatory compliance deadlines in major urban markets that require owners to use EPA’s tools to benchmark and publicly disclose building energy consumption data.  The Roundtable’s Sustainability Advisory Policy Committee (SPAC) has worked closely with EPA on both their Energy Star whole-building and tenant-space labeling programs.
  • On Jan. 17, Energy and Commerce Committee Chairman Frank Pallone, Jr. (D-NJ) wrote to EPA Acting Administrator Andrew Wheeler requesting information on the Energy Star’s site deactivation.   Pallone also announced this week that the full Committee will hold a hearing on Jan. 31 about the impact of the shutdown on affected agencies within its jurisdiction.

The impact of the partial government shutdown and prospects for a long-term resolution beyond Feb. 15 will be a focus of discussion during The Roundtable’s State of the Industry Meeting and Policy Advisory Committee meetings on Jan. 29-30 in Washington, DC.

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TAX POLICY

Treasury Releases Highly Anticipated Final Regulations on New Pass-Through Deduction

The Treasury Department on Jan. 18 issued final regulations and new guidance on the 20 percent deduction for qualified pass-through business income (under Internal Revenue Code section 199A).

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The Treasury Department on Jan. 18 issued final regulations and new guidance on the 20 percent deduction for qualified pass-through business income (under Internal Revenue Code section 199A).

  • The new 20% deduction for pass-through business income is one of the most important – and complex – elements of the 2017 tax overhaul law.  The deduction was designed to provide relief to the 30 million businesses in the United States that are not C corporations, and thus don’t benefit from the corporate tax cut. 
  • The proposal was a key topic of Roundtable President and CEO Jeffrey DeBoer's testimony before the Senate Finance Committee shortly before lawmakers released the first version of their tax overhaul in the fall of 2017, and The Roundtable was closely involved in the legislative development of the provision.  (Roundtable Weekly, Sept. 22, 2017) 
  • The final regulations are largely positive, addressing several concerns highlighted in Roundtable comments that could have limited taxpayers’ ability to apply the deduction against real estate rental income. 
    • For example, Treasury agreed with The Roundtable and reversed its prior position on how non-recognition transactions, such as a like-kind exchange or a contribution of property to a partnership, affect the pass-through deduction.  The proposed regulations effectively would have penalized taxpayers for engaging in non-recognition transactions. 
    • Treasury adopted the Roundtable request to allow for aggregation of trades or businesses at the “entity” level, not just the individual level.  Treasury also adopted the Roundtable request to allocate the basis of a property to partners based on “book” depreciation rules, not tax depreciation rules. 
  • In certain areas, the final rules did not adopt specific recommendations offered in Roundtable comments, but nonetheless set forth helpful guidance. 

    DeBoer_SFC_x225_testimony

    The proposal was a key topic of Roundtable President and CEO Jeffrey DeBoer's testimony before the Senate Finance Committee shortly before lawmakers released the first version of their tax overhaul in the fall of 2017.  (Roundtable Weekly, Sept. 22, 2017) 

    • The Roundtable had asked Treasury to clarify that all real estate rental income would be considered income from a trade or business—a requirement of the statute.  Treasury declined to go this far, but did issue a proposed revenue procedure (IRS Not. 2019-07) that would establish a safe harbor for real estate rental income earned by taxpayers who spend 250 hours, directly or indirectly, on the activity. 
    • The Roundtable had encouraged Treasury to allow taxpayers to aggregate all real estate rental activities, including those conducted in separate entities, at the individual level.  While Treasury did not adopt this simplification, it did offer helpful new examples to clarify when real estate activities are sufficiently similar to permit aggregation by individuals.
  • In addition, proposed regulations issued alongside the final rules ensure that investors who receive REIT dividends indirectly through an interest in a mutual fund are eligible for the pass-through deduction—a priority for The Roundtable, Nareit, and others. 
  • TPAC will discuss issues related to the Section 199A regulations during its next meeting on Jan. 30 in Washington, held in conjunction with The Roundtable’s State of the Industry (SOI) Meeting.  

House Ways and Means Committee Chairman Richard Neal will also participate in the SOI meeting.  Neal – the long-standing co-chair of the House Real Estate Caucus – will discuss prospects for tax policy legislation with Roundtable Board Member John Fish (Chairman and CEO, SUFFOLK) on Jan. 29. 

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For questions about Roundtable Weekly, please contact The Roundtable's Scott Sherwood at rweekly@rer.org or (202) 639-8400.

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