President Biden and Congressional Leaders Discuss Path Forward for Infrastructure Legislation
President Biden met with congressional leaders this week to find a path forward on his $2.3 trillion infrastructure-focused American Jobs Plan. Republicans agreed to continue negotiations and develop a pared down counter-proposal that will limit the definition of infrastructure and include specific funding measures. (CNBC and Wall Street Journal, May 12 and The Hill, May 13)
Negotiations on Scope
- Biden’s multitrillion-dollar proposal calls for funding infrastructure investments by raising the corporate tax rate to 28% from 21% and making other changes to tax laws passed during the 2017 overhaul.
- "The proper price tag for what most of us think of as infrastructure is about $600 to $800 billion," McConnell said on May 9. (CBS News, May 10 and Kentucky Educational Television, May 10)
- Biden and Vice President Kamala Harris on May 12 met with the “Big 4” Congressional Leaders – Republican Senate Minority Leader Mitch McConnell of Kentucky, House Minority Leader Kevin McCarthy of California, Democratic Senate Majority Leader Chuck Schumer of New York and House Speaker Nancy Pelosi of California – to discuss infrastructure proposals. Although both sides remained deeply divided over the scope of an infrastructure package and exactly how to pay for it, some optimistic signs emerged from the meeting. (New York Times, May 12)
- McConnell commented after the meeting, “We’re not interested in reopening the 2017 tax bill. We both made that clear with the president. That’s our red line.” (Business Insider, May 12)
- However, McCarthy added, “there is a place where we can find bipartisanship” – and Pelosi noted, “I feel very optimistic . . . about our ability to pass such a bill, more optimistic now about being able to do so in a bipartisan way. But we’ll see.” (Tax Notes, May 13)
- Biden and Harris also met on May 13 to discuss infrastructure with a group of top Republican committee leaders, including Sen. Shelley Moore Capito of West Virginia, ranking member on the Senate Environment and Public Works Committee. (White House Readout of Oval Office Meeting, May 13)
- During the meeting, Republicans suggested using public-private partnerships to partially cover the costs of funding an infrastructure bill, instead of reversing elements of the 2017 tax bill. (The Hill, May 13)
- Capito commented after the meeting, "I think what he wants to see is 'OK, I get it you don't want me to touch the 2017 taxes ... well then how are we going to pay for this.' The [Paycheck Protection Program] was part of the discussion but there were other things discussed."
- Capito added, “He asked that we would come back with another offer, with more granularity to it and more details, and so we agreed to do that. Maybe some different numbers too." (The Hill, May 13)
- The president also met with key Democratic senators, including Joe Manchin of West Virginia and Kyrsten Sinema of Arizona, this week to discuss infrastructure measures proposals.
- Congressional Republicans are expected to propose their counter-offer for a pared-down infrastructure program next week.
- Real Estate Roundtable President and CEO Jeffrey DeBoer on April 30 issued a statement on funding options for President Biden’s American Jobs Plan and American Families Plan.
- DeBoer noted, “As policymakers consider the options to raise this needed revenue, we strongly urge that the focus be on broad-based tax increases that do minimal damage to job creation, risk taking and entrepreneurial activity. Unfortunately, particularly when considered in total, many of the tax proposals accompanying the American Jobs Plan or American Families Plan would reduce economic activity, impede job growth, and diminish opportunities for startup businesses and those less advantaged. The current law in these areas may be in need of review and reform, but repealing these incentives is simply not wise.” (Full Roundtable statement)
The initial release of President Biden’s American Jobs Plan on March 31 listed several corporate tax revenue measures to offset infrastructure spending. Further details on the Administration’s proposed tax and revenue provisions are scheduled to be released on May 27 as part of the president’s FY 2022 budget proposal. (Reuters, May 13)
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Capitol Hill Lawmakers Consider Tax Measures to Finance Infrastructure and other National Priorities
Democratic and Republican policymakers this week debated options for financing new investments in infrastructure and human capital, including tax proposals that could affect commercial real estate and incentives for capital formation.
- A May 12 House Ways and Means subcommittee hearing focused on "Funding Our Nation's Priorities: Reforming the Tax Code's Advantageous Treatment of the Wealthy." (Tax Notes, May 13)
- Several hearing witnesses testified in favor of recent tax proposals to repeal stepped-up basis upon death, including a recent bill introduced by Sen. Chris Van Hollen (D-MD). (Roundtable Weekly, April 2. Van Hollen news release, March 29 and section-by-section bill explanation).
- Concerns exist among Democrats about Biden’s tax plans, which range from eliminating stepped-up basis to raising the corporate tax rate and increasing tax rates on wealthy investors. (Washington Post, May 11 and RollCall, May 6)
- More than a dozen House Democrats sent a May 6 letter to their leadership emphasizing how the elimination of stepped-up basis could threaten farms and family businesses. “Farms, ranches, and some family businesses require strong protections from this tax change to ensure they are not forced to be liquidated or sold off for parts, and that need is even stronger for those farms that have been held for generations,” according to the letter. [Rep. Jim Costa (D-CA) news release and Roll Call, May 6]
- President Biden backed elimination of stepped-up basis during his campaign. (CNBC, “This is how Joe Biden will tax generational wealth transfer,” March 13, 2020 / CNBC, June 30, 2020 / ABC News, Oct. 8, 2019)
- The Real Estate Roundtable, along with other members of the Family Business Estate Tax Coalition, recently released a report by EY’s Dr. Robert Carroll, Treasury’s former top tax economist, which found repealing stepped-up basis would result in reduced job growth, lower wages, and a reduction in GDP of roughly $10 billion per-year.
- The EY report, Repealing Step-Up of Basis on Inherited Assets: Macroeconomic Impacts and Effects on Illustrative Family Businesses, concluded that, “Many family-owned businesses have value tied up in illiquid land, structures, and equipment that may need to be liquidated, or leveraged to finance loans, to pay for the new tax burden at death.” The one-time capital gains tax could “limit the business’ viability as an ongoing concern.”
Energy Tax Legislation
- Senate Finance Committee Chair Ron Wyden (D-OR) in a May 12 statement said the committee will begin consideration this month of infrastructure and jobs legislation, starting with a markup on energy tax measures. “Following the clean-energy markup, the committee plans to consider additional key pieces of our jobs and infrastructure agenda,” according to the statement. (The Hill, May 12)
- The Finance Committee on May 18 will hold a hearing entitled "Funding and Financing Options to Bolster American Infrastructure."
- Sen. Wyden last month introduced the Clean Energy for America Act, which would revamp tax incentives directed at buildings, electricity and transportation. (Roundtable Weekly, April 30)
- Wyden’s bill includes reforms to the 179D deduction for energy efficient commercial and multifamily buildings – with the value of the incentive increasing as more energy is conserved. (Text of the legislation, one-page summary of the bill and a section-by-section summary.)
- A broad coalition of real estate, environmental, and manufacturing groups led by The Roundtable supports the E-QUIP Act (H.R. 2346), which proposes “accelerated depreciation” for high-performance equipment installed in commercial and multifamily buildings. The coalition is urging Senate and House policymakers to include this measure as part of any “green tax” package that may be folded into larger infrastructure spending legislation. (Roundtable Weekly, April 2)
- Roundtable President and CEO Jeffrey DeBoer emphasized an important distinction between energy incentives affecting CRE. “The 179D incentive relies on the energy performance of an entire building, without accounting for its age or tenant usage. By contrast, E-QUIP focuses on an individual building’s components – each one capable of contributing to a reduction in overall energy consumption. The E-QUIP incentive would therefore therefore apply to all buildings more efficiently, despite their age or tenant base, and increase energy performance across all asset classes.”
- Among the many tax issues on The Roundtable’s 2021 policy agenda is the Biden administration's proposal to cap real estate profits that can be deferred in a 1031 like-kind exchange to $500,000.
- On May 11, The Wall Street Journal reported on the significant impact the proposal would have on the multifamily market, which utilizes 1031 exchanges as a primary source of capital. Additionally, the May 7 issue of Realtor Magazine focused on how the 1031 proposal could present adverse consequences for communities and their economic development.
- The Real Estate Roundtable, along with 30 other national real estate, housing, environmental, farming, ranching, forestry, and financial services-related organizations, wrote to key policymakers on March 16 to raise awareness of how 1031 exchanges support jobs, economic development, local communities, property taxes, and the supply of rental housing, among other benefits. (Roundtable Weekly, March 19)
- Between 10-20 percent of all commercial real estate transactions involve a like-kind exchange. The coalition’s letter describes how like-kind exchanges under section 1031 of the tax code helped stabilize property markets at the height of the COVID-19 lockdown, and will continue to facilitate repurposing of real estate assets in the post-COVID economy.
- Roundtable Senior Vice President & Counsel Ryan McCormick on May 18 will discuss the economic contributions of like-kind exchanges to the U.S. economy during an Institute for Portfolio Alternatives (IPA) Summit session.
- Reps. Tom Suozzi (D-NY) and Darin LaHood (R-IL) on May 11 introduced the bipartisan Parity for Non-Traded REITs Act (H.R. 3123) to boost investment in commercial real estate and infrastructure. In 2015, Congress increased the amount of equity that a foreign shareholder can invest in a U.S. exchange-traded REIT to 10 percent without generating tax liability under the Foreign Investment in Real Property Tax Act of 1980 (FIRPTA). The Suozzi-LaHood bill would extend the same 10 percent FIRPTA exemption to publicly offered but non-exchange-traded REITs.
- “Given the current economic environment and the need for additional investment in U.S. real estate, updating existing FIPRTA rules applicable to public non-traded REITs will expand available capital, create parity with exchange traded REITS, and level the playing field for investors – thereby encouraging more foreign investment in U.S. real estate and generating economic and job growth at home,” said Rep. LaHood. (Institute for Portfolio Alternatives, May 7)
Roundtable President and CEO Jeffrey DeBoer will discuss the wide-range of tax proposals noted above, and others addressed in the organization’s 2021 policy agenda, during a May 18 Marcus & Millichap webcast, “Tax Reform: a CRE Game Changer?”
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Treasury Releases New Guidance for Emergency Rental Assistance; YIMBY Act Reintroduced
The Treasury Department on May 7 issued new guidance for local municipalities administering emergency rental assistance programs, with rules aimed at directly assisting more renters in less time. The rules simplify applications for aid, expand covered costs such as moving expenses and hotel stays, and require programs to help tenants directly even if their housing providers choose not to participate. (New York Times, May 7)
- Congress approved $25 billion of emergency rental assistance in December 2020 under the Consolidated Appropriations Act. An additional $21.6 billion was allocated in March 2021 under the American Rescue Plan Act. The Treasury Department ‘s May 7 announcement releasing the second allocation was accompanied by its new guidance. (National Multifamily Housing Council, May 10)
- State and local authorities have been overwhelmed with how to allocate the influx of funds, leaving many tenants and housing providers waiting weeks or months for the assistance. (Washington Post, April 8 and Wall Street Journal, April 13)
- The nine “enhanced policies” from Treasury aim to ensure that states and localities can move quickly to address the housing affordability crisis wrought by the pandemic. (Treasury’s May 7 Fact Sheet and FAQs on Emergency Rental Assistance)
- The new guidance comes days after a federal judge overturned the U.S. Centers for Disease Control and Prevention (CDC) eviction moratorium, which is scheduled to expire June 30. Judge Dabney L. Friedrich of the U.S. District Court for the District of Columbia also issued an order on May 5 that temporarily allows the moratorium to continue while she considers an emergency appeal by the Biden Administration. (Roundtable Weekly, May 7)
Rental Assistance Support
- The Roundtable is part of a broad real estate coalition that recently urged state, county and municipal officials to distribute the allocated federal funds as soon as possible. (Coalition letter, April 15)
- The coalition letter emphasized the need “to quickly and fully allocate available American Rescue Plan federal funds to provide assistance to renters, consumer-facing small businesses, and impacted industries such as retail, tourism, travel, and hospitality that are having trouble paying rents, mortgages or remaining viable enterprises due to the COVID-19 pandemic.”
- The bipartisan “Yes In My Backyard (YIMBY) Act” was reintroduced on May 13 in the House by Reps. Trey Hollingsworth (R-IN) and Derek Kilmer (D-WA).
- The bill would require local governments applying for federal housing development funds through the Community Development Block Grant (CDBG) program to report whether they have enacted policies to reduce counterproductive regulations that may affect affordability. (Hollingsworth news release and text of the bill)
- The Real Estate Roundtable is one of many organizations that have endorsed YIMBY, which passed the House last year but stalled in the Senate. The Roundtable also urged support for the YIMBY Act in comments filed with HUD in January 2020. (Roundtable Weekly, March 6, 2020)
- A Senate YIMBY companion bill was also introduced May 13 by Sens Todd Young (R-IN) and Brian Schatz (D-HI).
- “Discriminatory local zoning and land use policies drive up housing costs in communities across America,” said Sen. Young. “These policies exacerbate the housing affordability crisis and stifle the ability of Americans to move to areas of opportunity. My legislation will require cities, towns, and rural areas across America to face this reality under a new level of transparency and encourage them to cut these harmful regulations.” (Sen. Young news release, May 13)
- “The YIMBY Act complements the many pro-housing proposals currently before Congress,” said Mike Kingsella, Executive Director of Up for Growth Action. “The YIMBY Act will empower communities across the country to clear the path for housing that is more affordable, equitable, and sustainable.” (Up for Growth’s YIMBY Fact Sheet)
The Roundtable and its coalition partners will continue to urge lawmakers to pass the YIMBY Act and similar legislation that eases burdensome rules that inhibit affordable housing development.
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