The Biden administration yesterday proposed a $6.9 trillion FY2024 budget that includes $3 trillion in deficit reduction and $2.2 trillion in tax increases over the next decade on corporations, high-earning households, and certain business activities, including real estate investment. (White House budget materials and Treasury Department news release)
Blueprint for Negotiations
- Real Estate Roundtable President and CEO Jeffrey DeBoer said, “Congress has rejected several of these same tax proposals in the past. In particular, Congress has said no to proposals to double the capital gains rate, tax gains reinvested in property of a like-kind, or taxing unrealized gains. We will strongly urge that these counter-productive proposals again be rejected. They have weak policy support, are poorly timed and quite risky given the current uncertain economy.”
- Of note for real estate:
- Capital Gains Rate
The top, combined tax rate on long-term capital gains would nearly double from 23.8% (20% + 3.8% net investment income tax) to 44.6%. This results from increasing the maximum capital gains rate from 20% to 39.6% and a new proposal to increase the net investment income tax from 3.8% to 5%.
- Mark-to-Market Tax on Unrealized Capital Gains
The FY 2024 budget carries over President Biden’s proposal from last year, imposing a retroactive, annual minimum tax of 25% on the income and unrealized gains of taxpayers with wealth (assets minus liabilities) exceeding $100M.
- Real Estate Professionals
The budget also carries over a proposal to extend the 3.8% net investment income tax to real estate professionals and other pass-through business owners who are currently exempt from the tax because they are active in their business.
- Other real estate-related tax proposals include:
- Taxing carried interest as ordinary income
- Limiting the deferral of gain from like-kind exchanges
- Increasing the top tax rate on ordinary income to $39.6%
- Ending step-up in basis and taxing unrealized capital gains at death
- Expanding the limitation on excess business losses for non-corporate taxpayers by converting the limitation from a 1-year deferral to a permanent compartmentalization of active pass-through losses
- Modifying tax rules for grantor retained annuity trusts (GRATs) and grantor trusts
- Recapturing and taxing real estate depreciation deductions at ordinary income tax rates
- The budget also devotes $59 billion to provisions aimed at increasing the supply and availability of affordable housing, as well as $10 billion “to incentivize State, local, and regional jurisdictions to make progress in removing barriers to affordable housing developments, such as restrictive zoning.” Tax incentives in the budget include an expansion of the low-income housing tax credit (LIHTC) and a new tax credit for the development of affordable, owner-occupied housing.
These tax issues and other policies affecting CRE will be discussed during The Roundtable’s Spring Meeting on April 24-25 in Washington.
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A stopgap funding bill that will keep the government open through mid-December passed the Senate yesterday, the House today, and is expected to receive President Biden’s signature tonight. (Bill text and summary)
CR Buys Time
- The “continuing resolution” (CR) passed Congress after an energy permitting measure sponsored by Sen. Joe Manchin (D-WV) was removed earlier in the week. (Business Insider, Sept. 27)
- The funding bill will keep federal agencies operating through Dec. 16, buying time for lawmakers during the upcoming lame duck session to craft a possible FY2023 “omnibus” budget package by year-end.
- The CR includes reauthorization of the National Flood Insurance Program (NFIP), which has been extended more than 20 times. Bloomberg reported that House Financial Services Chair Maxine Waters (D-CA) wants a longer-term NFIP extension and other program changes. “It has to be bipartisan. We are working on keeping the premiums down, and some of the other issues that have been brought to our attention,” she said.
Lame Duck Awaits
- After the November election and before the new Congress is seated in January, current members of Congress will return for a “lame duck” legislative session. In addition to addressing outstanding legislative issues, lawmakers will meet with newly elected members, organize their respective party conferences, vote on leadership and committee positions, and discuss their post-election policy agendas.
- On Thursday, Senate Leader Chuck Schumer announced the Senate would not return until Nov. 14. (The Hill, Sept. 29)
- The House is scheduled to return from recess on Nov. 9, after the midterm elections.
- Legislative issues that will vie for attention in the lame duck session include federal appropriations, reauthorization of defense programs, and expiring tax provisions affecting real estate such as certain temporary expansions of the low-income housing tax credit.
- The elections, tax policy, inflation and other policy issues were among the topics discussed by industry leaders and national lawmakers last week during the Fall Roundtable meeting in Washington. (Roundtable Weekly, Sept. 23).
Next on The Roundtable’s calendar is the Real Estate Capital Policy Advisory Committee (RECPAC) meeting on Nov. 2 in New York City.
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The Biden administration on Monday released its $5.8 trillion FY2023 Budget, a package of spending, tax, and policy proposals that will face extensive congressional scrutiny and revisions over the coming months. The March 28 budget was accompanied by the Treasury Department’s “Greenbook,” which details the Administration’s $2.5 trillion in tax increases on corporations, high-earning households, and certain business activities, including real estate investment. (New York Times and BGov, March 29)
Billionaire Minimum Income Tax
- The new budget proposes to tax the wealthiest households on their unrealized capital gains, including real estate. The so-called “Billionaire minimum income tax” would impose a minimum levy of 20 percent on a comprehensive tax base that includes both realized income and the unrealized annual appreciation of a taxpayer’s assets.
- The new tax would apply to future appreciation of assets and all unrealized, built-in gains at the time of enactment. The tax on pre-enactment, built-in gains would be collected over a 9-year transition period.
- Although marketed as a tax on “billionaires,” the proposal would apply to any taxpayer with $100 million or more in wealth. This initial high threshold arguably represents a first step towards a wealth tax regime with much broader application. The original income tax applied to the top 1/3 of one percent of the U.S. population and now applies to over 150 million American households.
- In certain cases, holders of illiquid assets like real estate could elect to defer the minimum tax until the property is sold, provided they pay an additional charge.
- The budget leaves many of the most difficult questions unanswered, including:
- How would the tax survive a constitutional challenge on the grounds that direct taxes must be apportioned among the states by population?
- Why would taxpayers continue to make patient, long-term investments, knowing that they could be taxed before the investment generates cash income?
- Will much of the tax burden fall on noneconomic inflationary increases in asset values?
- How will the IRS administer the tax without building a highly intrusive compliance system that is based on subjective valuation measures?
- Another new revenue proposal in the budget relates is to tax depreciation recapture at ordinary income rates. The provision generally would treat gain on real estate held for more than one year as ordinary income to the extent of cumulative depreciation deductions taken in tax years beginning after 2022. Depreciation recapture is currently taxed at a rate of 25 percent.
- The White House budget also includes tax proposals recycled from last year that failed to pass congressional budget negotiations, including:
- repealing the deferral of gain from real estate like-kind exchanges;
- taxing long-term capital gains at ordinary income rates;
- taxing carried interest in real estate partnerships as ordinary income; and
- treating transfers of property at death as realization events subject to capital gains tax.
Immediate Congressional Pushback
- The spending and revenue proposals faced immediate pushback on Capitol Hill by Republicans and Democrats, including Sen. Joe Manchin (D-WV), a key centrist who stated he opposes President Biden’s 20% minimum tax on unrealized capital gains for households worth at least $100 million. (CQ News, March 29)
- Manchin told The Hill, “You can’t tax something that’s not earned. Earned income is what we’re based on. Everybody has to pay their fair share, that’s for sure. But unrealized gains is not the way to do it, as far as I’m concerned.”
- Manchin also recently stated he is open to negotiating some limited remnants of the defunct Build Back Better (BBB) Act, with a focus on energy-related incentives, prescription drug costs ,and deficit reduction. (Business Insider, March 24)
Other Measures Directly Affecting Real Estate
- Biden budget proposals impacting other aspects of The Roundtable’s 2022 Policy Agenda include:
- Energy and Climate – the president’s budget request outlines $44.9 billion for increased spending on several climate-related initiatives, yet does not address specific clean energy provisions that were part of last year’s BBB bill. Instead, a “deficit neutral reserve fund” is noted in the FY23 budget to accommodate a potential future deal on clean energy legislation with Democratic Sens. Joe Manchin (D-W.Va.) and Kyrsten Sinema (D-AZ). (E&E News, March 28 and Axios Generate, March 29)
- Affordable Housing – the FY23 budget seeks to ease the nation’s affordable housing shortage with $50 billion in federal funding for housing construction and supply, including $35 billion for state and local housing finance agencies. (PoliticoPro, March 28)
- SEC Reporting Requirements – The Securities and Exchange Commission would receive $2.15 billion in the FY2023 budget proposal, an 11.4% increase from FY2021 (BGOV, March 28). The SEC has ramped up its activity recently with proposed rules on reporting requirements for investment advisers, climate risks and cybersecurity incidents that may have significant impacts for the real estate industry.
Issues outlined in The Roundtable’s recently released 2022 Policy Agenda in the areas of tax, climate, capital and credit and cybersecurity will be discussed during the April 25-26 Spring Meeting (Roundtable-level members only) in Washington DC.
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Congressional appropriators received an emergency request yesterday from the White House for an additional $10 billion for Ukraine assistance and $22.5 billion for pandemic response funding. The request may complicate lawmakers’ efforts to pass an “omnibus” spending package by March 11, when current government funding expires. (Punchbowl News, March 3)
- Congressional appropriators may release the text of an omni bill within days, as House Democrats hope to pass a potential $1.5 trillion spending package early next week for the Senate to consider before the March 11 funding deadline. (Politico, March 3)
- A deal on an omni package would fund the government though Sept. 30, consolidate 12 separate spending bills and release additional funds for infrastructure. (Tax Notes, Feb. 18 and Roundtable Weekly, Feb. 11)
- Reauthorization and reform of the EB-5 visa investment program is one of the many issues being negotiated for possible inclusion in the omni funding bill.
- If efforts to pass an omnibus deal fail, Congress could pass yet another Continuing Resolution to fund the government at current levels – while considering separate bills to fund aid for Ukraine or the U.S. response to COVID-19.
SOTU & Climate Measures
- Yesterday’s White House emergency request comes after President Joe Biden’s March 1 State of the Union address, where he sought to rebrand the multitrillion Build Back Better (BBB) spending package into a pared-down proposal called “Building a Better America.” (BGov, March 2)
- The moribund BBB legislation stalled at $1.7 trillion, which included $555 billion in climate-related incentives. (Roundtable Weekly, Jan. 21)
- President Biden’s address on Tuesday also touched on climate measures such as tax credits for electric vehicles, energy efficiency improvements, and clean energy production. (White House Fact Sheets on Clean Energy and Infrastructure, Feb. 28)
- “Let’s provide investment tax credits to weatherize your home and your business to be energy efficient and get a tax credit for it; double America’s clean energy production in solar, wind, and so much more,” Biden stated.
- The Real Estate Roundtable on Nov. 16, 2021 supported the BBB Act’s climate measures in a letter to congressional tax writers. The letter also detailed five Roundtable recommendations aimed at improving certain green energy tax provisions affecting real estate. (Roundtable letter, Nov. 16)
Key Senate Votes
- Key Sen. Joe Manchin (D-WV), right, chair of the Senate Energy and Natural Resources Committee, has signaled his support for climate measures in a revised BBB package. (Roundtable Weekly, Feb. 18)
- Manchin on Wednesday responded to the State of the Union, saying he could support a smaller spending package that would split revenue between deficit reduction and new spending. Manchin said, “If you do that, the revenue producing [measures] would be taxes and [prescription] drugs. The spending is going to be climate.” (Politico, March 2 and E&E News, March 3)
- However, another key vote in the 50-50 upper chamber – Sen. Kyrsten Sinema (D-AZ), left – has voiced opposition to raising taxes. (BGov, March 2)
As Congress continues to work on the current fiscal year budget, President Biden will release a non-binding budget for the 2023 fiscal year that will outline his administration’s major economic, tax and climate policy priorities. The Treasury Department will also release its “Greenbook,” which will detail proposed tax cuts and revenue raisers that could fund the White House’s budget initiatives.
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The Senate yesterday approved funding to keep the government open through March 11, allowing congressional negotiators an additional three weeks to reach a spending deal for fiscal year 2022. (CQ, Feb. 18)
From CR to Omni
- The legislation (H.R. 6617) extends FY2021 funding levels, averting a government shutdown at midnight tonight. President Biden is expected to sign the Continuing Resolution (CR), which was passed by the House last week. (Roundtable Weekly, Feb. 11)
- Congressional appropriators are now focused on crafting an “omnibus” bill to fund the government though the end of FY2021, which began Oct. 1 and ends Sept. 30. A deal on an omni package would consolidate 12 separate spending bills and release additional funds for infrastructure. (Tax Notes, Feb. 18)
- The must-pass omnibus could become a vehicle for additional tax measures, including expired tax incentives and energy credits known as extenders. Senate Finance Committee Chair Ron Wyden, (D-OR), told Tax Notes on February 10 that certain credits may be included in an omnibus bill or in a scaled-down Build Back Better Act (H.R. 5376).
- The Biden administration’s request for Congress to appropriate billions more in COVID-19 response funds is meeting bipartisan resistance. Senate Appropriations Chair Patrick Leahy (D-VT) this week commented on negotiations about the omnibus and the White House supplemental, stating, “That should probably be a separate bill.” (Politico, Feb. 17 and PoliticPro, Feb. 18)
Roundtable & Energy Measures
- Omnibus negotiations and pandemic funding may be followed by congressional consideration of a pared-down BBB bill as the mid-term elections grow closer. Key Sen. Joe Manchin (D-WV), chair of the Senate Energy and Natural Resources Committee, has signaled his support for climate measures in a revised BBB package. (CNN, Jan. 5 and New York Times, Jan. 20)
- The Roundtable has supported the BBB Act’s climate measures, which include a suite of clean energy tax credits and incentives amounting to $300 billion. (Roundtable Weekly, Jan. 7)
- The Roundtable sent a letter to Congressional tax writers on Nov. 16, 2021 detailing five recommendations aimed at improving the green energy tax provisions affecting real estate. (Roundtable letter, Nov. 16)
The Senate returns on Feb. 28 for President Biden’s first State of the Union address on March 1, which will be followed by the administration’s FY2023 budget request.
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The House of Representatives on Tuesday passed a continuing resolution (CR) that would prevent a government shutdown on Feb. 18 by extending current government funding levels for three weeks, through March 11. The CR, which also applies to the National Flood Insurance Program, moves to the Senate for consideration next week. (CR legislative text and summary)
CR & Omnibus
- If passed by the Senate, the CR would give lawmakers additional time to finalize a separate “omnibus” spending bill for fiscal year 2022, which runs from Oct. 1, 2021 through Sept. 30, 2022. (BGov, Feb. 9)
- House and Senate Appropriations Committee leaders announced on Wednesday a “framework” deal for top-line spending levels for defense and domestic funding. Such an agreement would clear the way for congressional committees to complete a sweeping 12-bill spending bundle, which could amount to a $1.5 trillion omnibus package funding government operations into the fall. (PoliticoPro, Feb. 10)
- A full-year omnibus package would also release an additional $197 billion over 10 years for energy, transportation, and other programs that were part of last year’s bipartisan infrastructure bill. (BGov, Feb. 9 and CQ, Feb. 10)
Omni & BBB
- The “omni” funding bill is now a focus of Congress since President Biden’s multi-trillion Build Back Better (BBB) Act has been sidelined on Capitol Hill. (Politico, Feb. 10)
- Sen. Joe Manchin (D-WV), above, – a key vote in the 50-50 Senate – said on Sunday that he sees a government funding package as a higher priority than the stalled BBB bill. ‘We have to get a budget bill first,’ Manchin said. (CNN, Feb 6)
- Manchin this week also expressed his reluctance to endorse additional federal spending, after news that consumer inflation rose to 7.5%, the largest 12-month increase in four decades. (BGov, Feb. 10)
- Manchin’s statement included, “It’s beyond time for the Federal Reserve to tackle [inflation] head on, and Congress and the Administration must proceed with caution before adding more fuel to an economy already on fire. As inflation and our $30 trillion in national debt continue a historic climb, only in Washington, DC do people seem to think that spending trillions more of taxpayers’ money will cure our problems, let alone inflation,” Manchin said. (Newsweek, Feb. 10)
The start of the 2023 fiscal year cycle is approaching as Congress aims to pass an omnibus for the current year by March. President Biden is expected to release his FY2023 budget request shortly after his State of the Union address on March 1.
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House Democratic leaders, facing a heavy agenda and a Feb. 18 government funding deadline, are considering a three-week stopgap funding bill to allow appropriators more time to complete 2022 spending bills. (RollCall, Feb. 4)
- The House may vote early next week on a possible “Continuing Resolution” (CR) to extend current funding levels through March 11 and avoid a possible government shutdown. A CR would also require Senate approval. (CQ, Feb. 4)
- Negotiations among congressional appropriations leaders to reach a deal on a bipartisan omnibus bill for FY202 – which runs from Oct. 1, 2021 through Sept. 30, 2022 – have stalled on reaching top-line spending levels for defense and domestic funding. (The Hill, Feb. 1)
- This would be the third government funding stopgap for the fiscal year that began Oct. 1.
- Yesterday, Senate Appropriations Committee Ranking Member Richard Shelby (R-AL) stated that the length of time agreed upon for another CR extension would reflect whether Democrats and Republicans can agree to a funding deal. “If it’s a short-term [CR], that would mean probably that we’re making some progress, real progress,” Shelby said. “If it’s longer, we might go … for the rest of the year.” (The Hill, Feb. 3)
A Demanding Agenda
- A crowded congressional agenda – including what may be next for the stalled Build Back Better (BBB) Act, international geopolitics, and action on President Biden’s upcoming Supreme Court nominee – adds pressure for policymakers to reach agreement on a spending bill.
- House Speaker Nancy Pelosi (D-CA), above, yesterday noted the urgency to reach an omnibus funding agreement. She stated, “We’re hoping to get that done as soon as possible in terms of … the omnibus bill.” Pelosi added, “One connection between infrastructure and omnibus is that some of the money in the infrastructure bill cannot be freed up until we pass the omnibus bill,” she said. (Pelosi Weekly Press Conference, Feb. 3)
- Separately, the impact of the FY2022 funding negotiations are unlikely to affect the timing for congressional consideration of how to pare down the BBB Act (H.R. 5376), according to House Ways and Means Chair Richard Neal (D-MA) and Senate Finance Chair Ron Wyden (D-OR). Both policymakers said they did not want to set an “artificial” deadline for potential revisions to the stalled proposal. (Tax Notes, Feb. 3 and Roundtable Weekly, Jan. 21)
- As FY2022 spending negotiations continue, The Washington Post reported today that the White House may request additional federal funding from Congress to aid pandemic recovery as current funding for preparedness is starting to dwindle.
President Biden is also expected to start the next fiscal year cycle with the release of his fiscal budget request for 2023 – shortly after his State of the Union address on March 1.
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House Democrats on Sept. 21 passed a short-term funding bill that would keep federal agencies open until Dec. 3 while suspending the debt limit through December 2022. The bill, passed on a party-line vote (220-211) faces bleak chances of Senate approval, where 60 votes are needed to avoid a filibuster in the evenly divided upper chamber. Republicans object to linking the debt ceiling to FY22 government funding.
Shutdown, Default Loom
- The short-term bill to extend funding for government operations at current levels, known as a Continuing Resolution (CR), would avoid a partial government shutdown on Oct. 1. Funding for programs affecting national flood insurance and surface transportation are also scheduled to expire Sept. 30.
- Senate Minority Leader Mitch McConnell (R-KY) stated Democrats need to separate the CR from legislation that would suspend or increase the debt limit, which the GOP will not support. (Louisville Courier-Journal, Sept. 23)
- Meanwhile, Treasury Secretary Janet Yellen issued a stark warning to policymakers that they must raise or suspend the debt ceiling as soon as possible – or the federal government will default on its financial obligations sometime in October. (Wall Street Journal, Sept. 19 and Reuters, Sept. 22)
- Yellen stated, “Doing so would likely precipitate a historic financial crisis that would compound the damage of the continuing public health emergency. Default could trigger a spike in interest rates, a steep drop in stock prices and other financial turmoil. Our current economic recovery would reverse into recession, with billions of dollars of growth and millions of jobs lost.”
- Treasury has been spending down its reserves since Aug. 1, when the current two-year debt ceiling suspension ended. Yellen warned that hitting the debt ceiling would result in a halt of social security payments to nearly 50 million seniors for a time. Additionally, troops could go unpaid and millions of families who rely on the monthly child tax credit could see delays. (Axios, Sept. 23)
- A coalition of 13 real estate trade organizations, including The Roundtable, last week urged congressional leaders to raise the statutory debt limit as soon as possible. The letter stated, “Given the more than $8.6 trillion in mortgage debt backed by the federal government through Fannie Mae, Freddie Mac, Ginnie Mae and other federal agencies, the housing and real estate markets are particularly susceptible to any instability stemming from concern about the U.S. meeting its financial obligations.” (Coalition letter, Sept. 16)
Policymakers face the debt ceiling and FY22 government funding deadlines next week as Democrats struggle to advance sprawling legislative bills on infrastructure (see Infrastructure story above).
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The U.S. House of Representatives yesterday passed the Bipartisan Budget Act of 2019 (H.R. 3877) that would suspend the national debt ceiling until July 31, 2021; raise federal spending over the next two years; and avoid the threat of automatic, across-the-board “sequestration” budget cuts. The bill now goes to the Senate, which is expected to vote next week. ( Section-by-Section summary of the bill, Budget Committee)
The U.S. House of Representatives yesterday passed the Bipartisan Budget Act of 2019 (H.R. 3877) that would suspend the national debt ceiling until July 31, 2021; raise federal spending over the next two years; and avoid the threat of automatic, across-the-board “sequestration” budget cuts.
- The measure, which passed 284-149, caps recent negotiations between Democratic congressional leaders and the White House. Earlier this month, Treasury Secretary Steven Mnuchin wrote to House Speaker Nancy Pelosi (D-CA) warning that if the debt ceiling was not raised, the U.S. could run out of cash to pay its bills in early September, resulting in potential default on the nation’s financial obligations. (Roundtable Weekly, July 12)
- The deal increases discretionary spending limits $324 billion over two years, replacing the prospect of strict sequestration caps imposed under the Budget Control Act of 2011. The bill passed by the House permanently ends sequestration, which would impose a 10 percent cut on all programs if budget targets are not met. (CQ, July 25)
- The fiscal package passed by the House would increase the budget cap for FY’20 defense programs by three percent, to $738 billion. Funding for domestic programs would increase four percent, topping off at $632 billion. (Politico, July 25)
- The deal also lifts the debt limit through July 2021, meaning policymakers would not have to address the controversial issue during the 2020 election year.
- President Trump encouraged GOP lawmakers to endorse the legislation, tweeting yesterday, “House Republicans should support the TWO YEAR BUDGET AGREEMENT which greatly helps our Military and our Vets. I am totally with you!”
- Senate Majority Leader Mitch McConnell, (R-KY) this week stated he expects the Senate to pass the House bill next week and send it to President Trump for his signature. (Washington Post, July 25). He added, “I make no apologies for this two-year caps deal. I think it’s the best we could have done in a time of divided government. The alternatives were much worse.” (Politico, July 23).
- When Congress returns from summer recess on September 9, policymakers will face a tight deadline to set federal appropriations for individual agencies and departments for FY’20. Current FY’19 funding runs out on September 30, as does legislative authority for the National Flood Insurance and EB-5 investment programs.
- If Congress and President Trump cannot agree on how to allocate the $1.37 trillion in discretionary money allotted for the new fiscal year beginning October 1, a stopgap funding measure (or “Continuing Resolution”) may be required.
- Last December and January, the lack of a government spending deal over security measures on the southern border led to a 35-day partial government shut down. (Roundtable Weekly, Feb. 1)
The House recessed today for six weeks; the Senate is scheduled to leave August 2.