Senate Committee Advances Portman-Shaheen Energy Efficiency Bill

Senators Rob Portman (R-OH) and Jeanne Shaheen (D-NH)

The Senate Energy and Natural Resources (ENR) Committee passed a bill on Wednesday that emphasizes voluntary measures and incentives to drive energy efficiency improvements in U.S. buildings, manufacturing, and other economic sectors. 

  • The Energy Savings and Industrial Competitiveness (ESIC) Act (S. 2137)sponsored by Senators Rob Portman (R-OH), above left, and Jeanne Shaheen (D-NH), right, and long endorsed by The Real Estate Roundtable – was advanced by the panel, along with several other energy bills.
  • Senator Lisa Murkwoski (R-AK), chairman of the ENR Committee, noted during the hearing, “For several Congresses now, [S. 2137] has been the Senate’s flagship effort on energy efficiency.  I’m hopeful that we are going to be able to see this into law.”
  • The ESIC Act passed the committee by a substantial margin (14-6), although provisions regarding voluntary building energy codes failed to garner a majority of Republican votes.  Murkowski added that the codes sections still needed more work to gain fuller bipartisan support.  She was optimistic that the “prevailing concerns” of industry stakeholders could be resolved.  (Committee video, Sept. 25)
  • The ESIC Act would improve current laws by adding “open government” and transparency provisions that do not currently apply to the development of building energy codes.  Real estate and other stakeholders would be provided a platform to comment on DOE code proposals affecting the industry. The measure also includes a new requirement that would compel the U.S. Department of Energy (DOE) to consider costs and small business impacts as part of the codes development process.  (Roundtable support letter for S. 2137)
  • S. 2137 would also direct the two federal agencies that separately collect critical nationwide data on building energy use – namely, the Energy Information Administration and the Environmental Protection Agency – to coordinate on their respective programs and take steps to ensure higher quality, more consistent data.
  • The ESIC Act “is exactly the kind of smart, forward-looking policy that will help building owners respond to our modern, evolving economy” Roundtable President and CEO Jeffrey DeBoer stated in a Senate news release upon the bill’s introduction this summer.  (Roundtable Weekly, July 19) (Video of DeBoer’s statement)

Further negotiations to refine the ESIC Act are anticipated in the coming weeks before it might advance to the full Senate for a vote.  Companion legislation is pending in the House (H.R. 3962), sponsored by Peter Welch (D-VT) and David McKinley (R-WV).

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House Passes Legislation to Permit Banking Services for Legal Cannabis-Related Businesses

Jeffrey DeBoer, Real Estate Roundtable President and CEO

Real Estate Roundtable President and CEO Jeffrey DeBoer

The House of Representatives on Sept. 11 passed the Secure and Fair Enforcement (SAFE) Banking Act [H.R. 1595 (116)] – a Roundtable-supported bill that would allow federally regulated banks to provide mortgage and financial services to state-licensed, cannabis-related businesses (“CRBs”) without the threat of federal penalties. (Wall Street Journal, Sept. 25)

  • The SAFE Banking Act would also provide protection from the threat of federal enforcement action for real estate owners, law firms and other businesses that provide services to state-approved CRBs.
  • The bill – authored by Reps. Ed Perlmutter (D-CO) and Denny Heck (D-WA) and cosponsored by Reps. Steve Stivers (R-OH) and Warren Davidson (R-OH) – passed by a vote of 321 to 103.
  • Today, 47 states, four U.S. territories, and the District of Columbia – representing 97.7 % of the U.S. population – have legalized some form of recreational or medical marijuana, including CBD oil.  (Rep. Perlmutter news release, Sept. 25)
  • Rep. Perlmutter stated, “Thousands of employees, businesses and communities across this country have been forced to deal in piles of cash because of the conflict between state and federal law. After six years of working on this bill, the SAFE Banking Act will go a long way in getting cash off our streets and providing certainty so financial institutions can work with cannabis businesses and employees.” 

  • The Real Estate Roundtable sent a letter urging swift enactment of SAFE Act in March to the leadership of the House Financial Services and Judiciary Committees.  Roundtable President and CEO Jeffrey DeBoer noted in the letter, “H.R. 1595 clarifies that banks could not take adverse action on a loan to a real estate owner solely because that owner leases property to a legitimate CRB.  The measure also protects sellers and lessors of real estate and other CRB ‘service providers’ by clarifying that proceeds from legitimate marijuana-related transactions do not derive from unlawful activity, and thus do not provide a predicate for federal criminal money laundering.” (Roundtable letter, March 25, 2019)
  • In the Senate, the Banking, Housing and Urban Affairs Committee in July held a hearing on the banking-related challenges faced by CRBs.  The hearing featured testimony by Sens. Cory Gardner (R-CO) and Jeff Merkley (D-OR), co-sponsors of the SAFE Banking Act (S. 1200). 

  • Sen. Gardner stated on Wednesday, “The conflicting federal and state marijuana laws make it difficult for legitimate businesses to use basic financial services, and this bipartisan legislation gets Washington out of the way and gives them the access they need to do business and pay taxes. Today’s historic action in the people’s House adds to the momentum the SAFE Banking Act gained following the Banking Committee’s hearing in July. The Senate should move forward with the SAFE Banking Act and deliver it to the President for his signature.” (Gardner news release, Sept. 25)
  • In an interview with Politico, Senate Banking Chairman Mike Crapo (R-ID) said, “”This is an issue in which I have seen strong support not only across the country from various banking institutions, even the small community banks in states that don’t have the issue, but also among colleagues on both sides of the aisle,” he said. “I think there will be good support for it.”  (Politico, Sept. 27)
  • Sen. Crapo also said he may consider new additions to a Senate cannabis banking bill that could include anti-money laundering measures. 

Amendments were added to the House SAFE Banking Act to make it more appealing to Senate leadership, yet prospects for the bill’s passage in the Senate remain uncertain.  (MarketWatch and Politico, Sept 26)

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Broad Business Coalition Urges Congress to Extend Terrorism Risk Insurance Act (TRIA)

A broad business coalition urged Congress in a September 17 letter to swiftly pass a long-term reauthorization of the Terrorism Risk Insurance Act (TRIA), which is currently set to expire at the end of 2020.  Nearly 350 companies and organizations signed the letter including The Real Estate Roundtable.  (Coalition Letter 

  • TRIA was originally enacted in 2002 in response to the inability of insurance markets to predict, price and offer terrorism risk coverage to commercial policyholders.  The law was extended in 2005, 2007 and again in 2015 – following a 12-day lapse when Congress failed to complete their work on reauthorization at the end of 2014.
  • The coalition letter notes, “The American business community remembers all too well the twelve-day lapse in the program in early 2015 and the disruption that lapse played in a variety of markets.  We urge Congress to help provide much needed certainty by passing a long-term reauthorization of this important program without delay.”
     
  • The coalition emphasizes that TRIA has served as a vital public-private risk sharing mechanism, ensuring that private terrorism risk insurance coverage remains available to commercial businesses, educational institutions and non-profit organizations at virtually no cost to the taxpayer.  
  • According to a 2019 Marsh study, the education, media, financial institutions, real estate, hospitality and gaming, and health care sectors had the highest ‘take-up’ rates among the 17 industry segments surveyed – all above 70%.
  • Additionally, a 2018 Treasury Department report stated that “the Program has made terrorism risk insurance available and affordable in the United States, and the market for terrorism risk insurance has been relatively stable for the past decade.”
     
  • The letter emphasizes, “The undersigned organizations urge Congress to promptly enact a ‘clean’ long-term extension of this vital program.  Making changes to the TRIA mechanism to increase insurer retentions could affect the ability of many insurers, particularly smaller and mid-sized companies, to write risks or markets altogether, which ultimately impacts the ability of policyholders to secure adequate coverage.

Absent TRIA, there is not sufficient insurance and reinsurance capital available to provide comprehensive terrorism coverage to U.S. insurance buyers,” the coalition states.  (Reinsurance News, Sept. 17) 

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Treasury Releases Regulations Addressing National Security Concerns and Foreign Investment in Real Estate

The Treasury Department yesterday issued proposed regulations to comprehensively implement the Foreign Investment Risk Review Modernization Act of 2018 (FIRRMA), which seeks to more closely scrutinize certain investments and real estate transactions potentially affecting national security. (New York Times, Sept. 17) 

  • The proposed regulations include reforms to the Committee on Foreign Investment in the United States (CFIUS) – an interagency committee authorized to review certain transactions involving foreign investment in the United States for national security concerns.  The CFIUS reforms in FIRRMA received broad support in Congress and were signed by President Trump on August 13 as part of a defense funding bill. (Wall Street Journal, Aug. 15 and Roundtable Weekly, August 17) 
  • The Treasury released the rules, which affect real estate and private equity transactions, in two parts:

Provisions Pertaining to Certain Investments in the United States by Foreign Persons (31 C.F.R. part 800)

Provisions Pertaining to Certain Transactions by Foreign Persons Involving Real Estate in the United States (31 C.F.R. part 802)

  • The second part of the regulations clearly demonstrate that the federal government is intent on reviewing more real estate transactions for security concerns, while considering country-specific exemptions for the first time. 
  • The text affecting real estate includes, “FIRRMA expands CFIUS’s jurisdiction to include certain types of real estate transactions involving the purchase or lease by, or a concession to, a foreign person of certain private or public real estate located in the United States.”
  • The rule continues, “FIRRMA focuses on two general categories of real estate and provides certain exceptions. The first category of real estate is described by its relation to airports and maritime ports. The second category of real estate is described by its relation to U.S. military installations and other facilities or properties of the U.S. Government that are sensitive for national security reasons.”
  • An analysis of the proposed CFIUS reform regulations is available via Bloomberg Law.
  • The full text of the proposed regulations and frequently asked questions can be found on the Department of the Treasury’s website. 

The Roundtable plans to prepare comments, which are due by October 17, 2019 before the law is scheduled to go into effect in February, 2020. 

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Roundtable Requests Regulatory Correction to Unfair Tax Rules Affecting New Condo Construction

Condo-construction-shst-x475w

The Roundtable on August 21 wrote to Treasury Secretary Steven Mnuchin requesting regulatory relief from existing tax accounting rules that unfairly accelerate federal income tax liability for new condominium construction.  (Roundtable letter 

  • Current condo tax accounting rules require multifamily developers of condominium buildings with five or more residential units to recognize income and pay tax on their expected profit as construction is ongoing — well before pre-sale transactions are closed and full payment is due from the buyer.  The existing rules create a mismatch of cash flow and tax liability. Home builders of single-family homes, townhouses and row houses are not subject to this accounting rule restriction.  
  • Roundtable President and CEO Jeffrey DeBoer states in the letter, “The existing, discriminatory tax rule for condominium construction is particularly harmful in light of the significant and often measureable economic, environmental, and social benefits of high-density residential development.  High-density development brings down the costs of infrastructure, as well as the costs of key public services: police, fire, and emergency medical assistance.  The environmental benefits include reduced vehicle emissions and smaller ecological footprints that minimize encroachment on farms, forests, and other sensitive areas.  In addition, research links high-density growth to greater labor productivity and economic innovation.” 
  • The Roundtable’s letter details how the completed contract method of accounting – rather than the percentage of completion method – would more accurately fit the economics of condominium construction.  (Tax Notes, August 23)
  • In 2008 the IRS and Treasury released proposed regulations (REG-120844-07) under section 460 that would treat individual condo units as townhouses or rowhouses.
      
  • The Roundtable letter explains, “The Treasury Department can solve this problem, however, and provide a lift to homebuilding and the economy by simply finalizing a previously proposed regulation that regrettably fell off the Department’s regulatory agenda in the last Administration.  Pending, proposed Treasury regulations would modify what is considered a home construction contract and clarify that condominium construction qualifies for the completed contract method of accounting.” 

A House bill introduced in the last Congress by Reps. Carlos Curbelo (R-FL) and Joe Crowley (D-NY) aimed to correct this disparity.  Although the Fair Accounting for Condominium Construction Act (H.R. 3659) stalled in 2017, it could serve as a template for development of new legislation to correct current condominium tax accounting rules.  

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California Law Reflects National Affordable Housing Trend in Rent Regulations

California lawmakers passed legislation (AB 1482) September 11 that imposes a statewide cap limiting annual rent increases to 5% after inflation – the latest measure from a growing list of jurisdictions seeking to address housing affordability though rent regulations.  California Governor Gavin Newsom (D) has said he will sign the bill. (New York Times, Sept. 11 and NMHC, Sept. 12)

  • In a state of nearly 40 million people, California’s rent control measure could affect an estimated 8 million residents of rental homes and apartments. (Realtor Magazine, Sept. 12).  The 5% rent increase cap would not apply to housing built within the last 15 years or to single-family homes that are not corporate-owned. 
  • National Multifamily Housing Council (NMHC) President Doug Bibby responded, “After Californians overwhelmingly rejected the rent control ballot initiative less than a year ago, lawmakers today went against their constituents by passing a measure that will discourage investment, shrink the availability of affordable housing that already exists and squeeze even more people struggling in the housing market. This makes the problem worse. The housing affordability crisis is real, real Americans are being harmed by it every day and we need real solutions – not restrictive policies that we know don’t work.” (NMHC news release, Sept. 12)
  • An interactive national map, above, by the NMHC details the trend in state capitals addressing rent control measures.   In New York, a rent control law signed by Governor Andrew Cuomo on June 14 directly impacts about 40 percent of New York City’s apartment stock; freezes “stabilized” NYC apartments from moving to market rental rates; and discourages owners from modernizing aging housing.  (Wall Street Journal, June 14 and Roundtable Weekly, June 21).
  • Meanwhile, candidates on the 2020 campaign trail are offering plans to address the nation’s affordable housing needs. (NPR, June 18)  
  • Affordable housing proposals in Congress include an expansion of the low-income housing tax credit program (e.g., S. 1703,  H.R. 3077), and a similar tax credit geared to moderate-income, workforce housing (S. 3365, 115th Cong.).

Housing and Urban Development Secretary Ben Carson recently offered a strategy to boost affordable housing by encouraging localities to ease their own building restrictions. (Politico, June 14).  Secretary Carson is scheduled to discuss housing policy issues with Roundtable members during the organization’s Fall Meeting on October 30 in Washington.

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Portman-Shaheen Energy Efficiency Bill Considered In Senate Hearing

Senators Jeanne Shaheen (D-NH) and Rob Portman (R-OH)

The Senate’s Energy Subcommittee on Wednesday held a hearing that considered bipartisan legislation to help further advance energy efficiency in U.S. buildings without federal regulations – but through data-driven, voluntary measures.

  • The Senate panel assessed the Energy Savings and Industrial Competiveness (ESIC) Act (S. 2137) – co-sponsored by Senators Jeanne Shaheen (D-NH), above at left, and Rob Portman (R-OH), right,  –along with nine other energy policy bills at the subcommittee’s Wednesday hearing. The Roundtable is a strong supporter of the Portman-Shaheen bill.
  • Sen. Portman testified at the hearing, noting that the ESIC Act passed the Senate by an overwhelming margin in a prior session of Congress.  He remarked that the legislation contains no “heavy-handed mandates” and that its building code sections are “completely voluntary.”  He added that the measure would result in “greenhouse gas emissions reductions [that] are equivalent to taking about 11 million cars off the road.”  (Portman press release, Sept. 11.)
  • Sen. Shaheen’s testimony emphasized that “energy efficiency is the cheapest, fastest way to deal with our energy needs,” and that the bill would produce a policy trifecta to reduce emissions, protect the environment, and create jobs.  (Shaheen press release, Sept. 11.)
  • The Roundtable submitted a letter for the hearing’s record to reiterate its support for the bill.  Roundtable President and CEO Jeffrey D. DeBoer also spoke in support of the bill when it was announced at a press conference in July.  (Video of DeBoer’s statement on Portman-Shaheen)
  • The ESIC Act “is exactly the kind of smart, forward-looking policy that will help building owners respond to our modern, evolving economy” DeBoer stated in a Senate news release upon the bill’s introduction this summer.  “The needs of business tenants have changed dramatically since the turn of the century to power the data centers, IT, and communications systems upon which our workforce depends.  Building owners are meeting their tenants’ 24/7 energy demands while constructing and managing their assets more efficiently – and reducing their carbon footprints.” (Roundtable Weekly, July 19, 2019)  

Companion legislation to S. 2137 is pending in the House (H.R. 3962), sponsored by Peter Welch (D-VT) and David McKinley (R-WV).  As the next step in the Senate’s process, a mark-up of S. 2137 by the full Senate Energy Committee is expected this fall.

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Top Senate Democratic Tax-Writer Proposes New Capital Gains Regime, Ending Preferred Rate

Sen. Ron Wyden (D-OR)

On Thursday, Senate Finance Committee Ranking Member Ron Wyden (D-OR) presented and released a detailed white paper outlining his plan to reform the taxation of capital gains.  (News Conference Video, Center for American Progress Action Fund, Sept. 12)   

  • Entitled “Treat Wealth Like Wages,” the proposal is billed by the top Democratic tax-writer in the Senate as “a plan to fix our broken tax code, ensure the wealthy pay their fair share, and protect Social Security.”  Sen. Wyden’s proposal would end the preferred tax rate for capital gains and impose annual mark-to-market taxation of capital assets for taxpayers above certain income thresholds.
  • Both proposals represent dramatic departures from existing tax law.  They are direct challenges to two fundamental principles that support capital formation, entrepreneurship, and long-term investment: (1) tax on capital gain should be deferred until it is realized, and (2) capital gain should be subject to a reduced tax rate.
  • The mark-to-market rules, which Sen. Wyden refers to as “anti-deferral accounting rules, would apply to taxpayers averaging $1 million in income or $10 million in assets over the last 3 years.  “Tradable” assets such as stocks and bonds would be subject to annual taxation of unrealized gains. Taxpayers could take a deduction for unrealized losses.
  • While “non-tradable” assets like real estate would not be subject to mark-to-market on an annual basis, they would be subject to an additional layer of tax – a “look-back charge” – for the theoretical benefit of the tax deferral when the asset is sold, or certain other revaluation events occur.  This look-back charge would be in addition to the capital gains tax, which would be set at the top ordinary income tax rate. 
  • The structure of the look-back charge is undefined.  Sen. Wyden’s paper describes a few options:  (1) an interest charge on deferred tax; (2) a yield-based tax designed to eliminate the benefits of deferral; or (3) a surtax based on an asset’s holding period.  The look-back charge would also be imposed at death, even if the asset is not sold (the basis of the asset would step up at death).
  • Special rules would apply for pass-through entities.  For example, the Wyden proposal would require a partnership to calculate the lookback charge when real estate is contributed to or distributed from the partnership – and report each partner’s share.
  • Built-in gain on existing assets would be subject to the tax, paid over an unspecified transition period.  The estimated $1.5 – $2 trillion of revenue raised from the proposal would be dedicated towards shoring up the long-term solvency of Social Security.  (CNBC, Sept. 12)

  • “Congress should strengthen tax rules that promote capital formation, not weaken them, which is what Sen. Wyden’s proposal would do,” said Real Estate Roundtable President and CEO Jeffrey DeBoer.  He added, “Rewarding risk-taking, long-term investment, and entrepreneurship is at the heart of the American economic model. By eliminating any tax incentive to pursue projects that have a pay-off that is far in the future, the proposal would discourage businesses and individuals from undertaking the long-term, capital-intensive investments that drive productivity and economic growth by deepening and enriching our Nation’s capital stock, including its commercial real estate.”   

    Sen. Wyden invited comments about the proposal on a wide variety of issues, such as how to calculate the look-back charge and whether debt should reduce the value of property when measuring a taxpayer’s aggregate assets.   The Roundtable’s Tax Policy Advisory Committee (TPAC) plans to review the proposal in detail and submit comments.  

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Senate Banking Committee and Administration Weigh In On GSE Reform Plan; FHFA Announces New Multifamily Cap Structure

Treasury's Housing Reform Proposal - Sept. 2019

The Senate Banking Committee’s September 10 hearing on “Housing Finance Reform: Next Steps” focused on the Trump Administration’s efforts to reform the U.S. housing finance system, including their proposal to overhaul the Government-Sponsored Enterprises (GSEs) Fannie Mae and Freddie Mac.  

  • Treasury Secretary Steven Mnuchin testified before the committee about the Administration’s Housing Reform Plan released last week to revamp and recapitalize the GSEs before releasing them from conservatorship.  The Administration’s goal is to reduce the federal government’s footprint in housing finance, increase the role of the private sector and private capital in the market and, eventually, return Fannie Mae and Freddie Mac to private shareholder ownership.   Mnuchin testified that if Congress fails to act, the Administration will pursue an agreement with the GSEs’ regulator, the Federal Housing Finance Agency (FHFA) to change the terms of the government’s bailout agreements reached 11 years ago.
  • The FHFA announced today a revised cap structure on the multifamily businesses of Fannie Mae and Freddie Mac.  The new multifamily loan purchase caps will be $100 billion for each organization, a combined total of $200 billion in support to the multifamily market, for the five-quarter period Q4 2019 – Q4 2020.  The new caps are significantly higher than the existing ones and apply to all multifamily business – no exclusions. To ensure a strong focus on affordable housing and traditionally underserved markets, FHFA directs that at least 37.5 percent of the Enterprises’ multifamily business be mission-driven, affordable housing.
  • After Fannie and Freddie received $191 billion in government support during the financial crisis of 2008 and entered conservatorship, they have become profitable.  Under the Administration’s plan, Fannie and Freddie profits would no longer go to Treasury, but would be dedicated to building their capital bases.  (Wall Street Journal, Sept. 10)
  • Mnuchin also testified that Treasury’s plan “would preserve the longstanding government support of the 30-year, fixed-rate mortgage loan.”  The Treasury plan acknowledges the disincentives posed by regulatory barriers such as rent control and calls for enhancing private involvement in multifamily lending by refocusing the GSEs on affordable and workforce housing.
  • Democratic senators clashed with Republicans during Tuesday’s hearing, emphasizing the reform outlines would raise home borrowing costs and neglect lower-income homeowners.  Sen. John Kennedy (R-LA) called for a specific Administrative proposal, stating, “This whole thing is a car wreck. It’s a dumpster fire…We spent $190 billion of taxpayer money, and we’re in worse shape.”  (AP, Sept. 10)
  • The Roundtable submitted comments this week in advance of the hearing (Roundtable letter, Sept. 9).   The Roundtable and 27 industry organizations also submitted principles for reforming the GSEs in March. (Roundtable Weekly, March 1)

The path to reaching bipartisan consensus on housing finance reform remains unclear, especially before the 2020 presidential election.  Housing finance reform will be a focus of discussion with Housing and Urban Development (HUD) Secretary Ben Carson during The Roundtable’s Fall Meeting on October 30 in Washington.

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Congress Returns to Packed Agenda, Funding Deadlines

U.S. Capitol

Congress returned this week from recess to a full legislative agenda and a September 30 government funding deadline.  (Roll Call, Sept. 10) 

  • None of the 12 annual discretionary spending bills have been signed into law yet.  Lawmakers  still must negotiate appropriations affecting contentious issues such as funding for a wall on the southern border, which is overseen by the Department of Homeland Security.  Disagreements over wall funding led to the historic 35-day partial government shutdown in 2018–2019. (Politico, Jan. 25) 
  • Of interest to real estate, funding for the EB-5 Immigrant Investor Regional Center Program and the National Flood Insurance Program (NFIP) is also set to expire September 30 – the end of the current fiscal year.  FY’20 begins October 1.  (Roundtable Weekly, Feb. 15). 
  • In order to give lawmakers more time to negotiate spending levels and policy differences, congressional leaders have endorsed a stopgap funding bill, or Continuing Resolution (CR).  The CR emerging from discussions between House and Senate appropriators is expected to run through November 22.  Both EB-5 and NFIP are expected to be included within a funding extension measure.  (Wall Street Journal, Sept. 10 and The Hill, Sept. 9)   
     
  • Several tax priorities are also vying for attention and could form the basis for an end-of-year agreement on tax legislation.  These issues include tax extenders, clean energy incentives and tax technical corrections
     
  • On September 4, the National Multifamily Housing Council, The Real Estate Roundtable, and other industry organizations sent a letter to Congressional tax-writers urging them to enact a technical correction related to the cost recovery period for residential rental property.  The correction would clarify that taxpayers electing out of the new limitation on business interest deductibility can depreciate their existing rental properties over 30 years, rather than 40 years.  The 30-year period applies to newly acquired or constructed residential rental properties, and should also apply to existing holdings.  (Letter on Cost Recovery Period for Residential Rental Property under Section 163(j), Sept. 4) 

Congress is scheduled to be in legislative session for three weeks in September, three weeks in October and a few weeks in November.  Both chambers aim to adjourn for the year by December 13, 2019.

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