Tag: Tax Policy

Roundtable Submits Comments to House Climate Crisis Committee; House Democrats Unveil Green Energy Tax Draft

Posted on by Trey Jackson

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The Roundtable submitted energy and climate policy recommendations to the House Select Committee on the Climate Crisis on Thursday, while members of the House Ways and Means Committee unveiled a draft legislative package of more than 20 energy tax incentives – including incentives to promote commercial and residential building energy efficiency.  

The Roundtable’s climate letter submitted Nov. 21 responds to a request for information from the Select Committee. This panel has no authority to write legislation but is authorized to study climate change and issue legislative policy recommendations (expected by March 31, 2020).

In its study and review of climate policy recommendations, the Select Committee has held a series of hearings featuring various stakeholders – including one focused on “Cleaner, Stronger Buildings.”  (Roundtable Weekly, October 25, 2019) .

The Roundtable’s comments to the Select Committee highlighted the priorities advocated by its Sustainability Policy Advisory Committee (SPAC) to:       

  • Improve the model building energy codes process by enacting the Portman-Shaheen Energy Savings and Industrial Competitiveness (ESIC) Act. (Roundtable Weekly, September 27, 2019)
     
  • Enhance EPA’s voluntary ENERGY STAR incentive programs for both commercial buildings and tenants.
  • Improve the quality and reliability of the national data collected by the federal Commercial Building Energy Consumption Survey.
  • Create meaningful accelerated depreciation periods to encourage investments in high performance equipment to retrofit existing commercial and multifamily buildings. (Roundtable Weekly, May 10, 2019)
  • Foster public-private partnerships to finance safety and resiliency improvements to the electricity grid, the natural gas pipeline network, and other energy infrastructure assets.

Meanwhile, a discussion draft of the Growing Renewable Energy and Efficiency Now (GREEN) Act was released Nov. 19 by the chairman of the House Ways and Means Subcommittee on Select Revenue Measures – Rep. Mike Thompson (D-CA). 

The GREEN Act would extend and revise a number of expired tax incentives, including provisions aimed at encouraging taxpayers to improve the energy efficiency of homes and commercial buildings. Specifically, the discussion draft includes:

  • An updated and enhanced deduction for capital expenditures on energy-efficient commercial building property (section 179D)
  • An expanded tax credit for the developers of new, energy-efficient homes (section 45L)
  • A modified tax credit for energy-efficient improvements to existing homes (section 25C)

Under the bill, the revised tax incentives would be available through 2024. Following release of the draft legislation, House Ways and Means Committee Chairman Richie Neal (D-MA) stated, “The climate crisis requires bold action, and I’m pleased that we’re using the legislative tools at Ways and Means’ disposal to create green jobs, reduce carbon emissions, and help heal our planet.” We look forward to hearing from stakeholders to ensure this bill is effective in helping improve energy efficiency and eliminating carbon emissions.”

Prospects for passing the GREEN Act are unclear as it is a Democratic initiative that currently lacks Republican support. 

Additionally, The Roundtable and coalition partners continue to lay the research and data foundation for a new tax incentive that would provide accelerated depreciation for high performance, HVAC, lighting, windows, and other equipment to retrofit existing commercial and multifamily buildings, known as “E-QUIP.” (See Roundtable Weekly, May 10, 2019).  The coalition’s objective is for bipartisan introduction of an E-QUIP bill in early 2020.

The Roundtable’s Tax Policy Advisory Committee (TPAC) plans to analyze the proposed measures and respond to any eventual energy tax legislation that may be introduced in the New Year.

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Treasury Issues Final Regulations Modifying Rules for Allocating Real Estate Debt Among Partners

Posted on by Trey Jackson

Final regulations released by the Treasury Department last Friday and effective October 9 provide new tax guidance on the allocation of liabilities between partners in a real estate partnership.  The new rules bring to a conclusion a regulatory project that started over six years ago.

  • How real estate debt and other liabilities are allocated among partners when property is contributed to a partnership carry important tax consequences.  Allocation rules can determine whether built-in gain is recognized or deferred at the time of the contribution.  The rules also affect whether a partner obtains sufficient tax basis to deduct future losses.  Generally, a partner receives full basis for partnership debt if the debt is recourse and the partner is obligated to pay off the loan in the event the partnership defaults.
  • The new regulations will likely complicate taxpayers’ ability to achieve a preferred allocation of real estate liabilities (and deductions) through the use of liability guarantees such as “bottom guarantees,” capital account deficit restoration obligations, and other payment or reimbursement arrangements. 
  • A bottom guarantee is a guarantee of the last dollars of a liability.  The lender may pursue the guarantor only if the lender is unable to collect at least the guaranteed amount of the loan from the borrower.  The final rules will largely restrict the use of bottom guarantees.  Treasury expressed concerns that bottom guarantees lack a non-tax commercial purpose, are “structured to insulate the obligor from having to pay,” and do not represent a real economic risk of loss.
  • On four separate occasions, The Roundtable submitted comments on the partnership liability regulatory project, which began in 2013. Additionally, a working group from The Roundtable’s Tax Policy Advisory Committee (TPAC) previously met with Treasury and IRS officials.  The Roundtable had concerns that changes would disrupt longstanding partnership tax rules and increase the tax liability of previously untaxed real estate reorganization transactions.  [Roundtable Comment Letters: March 13, 2013 and April 7, 2017  and August 7, 2017 ] 
  • Input from The Roundtable, TPAC members and other stakeholders contributed to several revisions to the proposed rules over the last five years.  The rules published in the Federal Register on October 9 finalize temporary regulations under section 752 that were released in 2016 and scheduled to expire this month.  Those 2016 regulations were revised versions of the rules initially proposed in 2014.  The October 9 rules also finalize proposed regulations issued in June 2018 that walked back 2016 proposed regulations with respect to the allocation of debt in “disguised sales” transactions under section 707. 
  • The preamble to the final rules notes that Treasury continues to consider the appropriate treatment of “exculpatory liabilities” that are recourse to an entity under state law, but where no partner bears the economic risk of loss.

The final regulations provide critical transition relief.  The rules generally apply to liabilities incurred or assumed by a partnership, and to payment obligations imposed or undertaken with respect to a partnership liability, on or after October 9, 2019.  The new restrictions do not apply if the liability was incurred or assumed by a partnership, or the payment obligation was imposed or undertaken, pursuant to a written binding contract in effect prior to October 9.

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Senate Finance Committee Ranking Member Introduces Bill to Tax Carried Interest at Ordinary Income Rates

Posted on by Trey Jackson

Senate Finance Committee Ranking Member Ron Wyden (D-OR) yesterday introduced legislation to fundamentally alter the longstanding tax treatment of a profits interest in a real estate partnership. 

Senate Finance Committee Ranking Member Ron Wyden (D-OR) has introduced legislation to fundamentally alter the longstanding tax treatment of a profits interest in a real estate partnership.

  • The Wyden proposal (detailed summary of the legislation and one-pager) would depart dramatically from prior carried interest legislation by taxing partners before any capital gain or even rental income is generated by the partnership.  For example, it would give rise to large amounts of taxable (but phantom) income for a general partner with a profits interest during the pre-construction and development phase of a real estate project.
  • The legislation would treat a profits interest in a real estate partnership as an interest-free loan from the other partners. The bill would effectively tax the partner with a profits interest annually, at ordinary income rates, on his or her deemed share of the invested capital by multiplying the deemed share by a specified interest rate (9% plus the variable yield on a corporate bond index that is currently 2.93%).  The product would be considered taxable, ordinary income.
  • In addition to taxing partners currently on non-existent, illusory income, in many cases the legislation would not allow partners to recover the taxes down the road if the project ultimately fails to produce a capital gain.  That’s because the losses would be treated as capital losses that generally are nondeductible against ordinary income. 
  • General partners are currently taxed at ordinary income rates on their management fees and other income that is compensatory in nature.  Partners owe tax on any guaranteed payments for services provided.  Under the Wyden bill, however, a real estate entrepreneur would be taxed today on a partnership’s invested capital-capital at risk-irrespective of whether the project will ever generate income.  

  • The  Real Estate Roundtable opposes both Senate and House carried interest proposals. General partners earning a carried interest in a real estate partnership bear significant risks beyond direct capital contributions. These risks can include funding predevelopment costs, guaranteeing construction budgets and financing, and exposure to potential litigation over countless possibilities. 

  • Senator Wyden’s bill came just days after a televised interview in which President Trump indicated he still intends to address the carried interest issue.  (FOXBusiness, May 20).  “If President Trump wants to address carried interest and make the tax code more fair, he’ll be happy to support my new proposal,” said Sen. Wyden. (Wyden news release, May 23) 
  • Other legislative proposals to reform the taxation of carried interest were introduced in March by Sen. Tammy Baldwin (D-WI) and House Ways and Means Committee member Bill Pascrell, Jr. (D-NJ).  (News releases: Baldwin and Pascrell)
  • The Roundtable and 13 other national real estate organizations sent a letter to members of the House Ways and Means Committee on March 26 about the adverse impact that the Baldwin-Pascrell legislation (H.R. 1735) would have on U.S. real estate and entrepreneurial risk taking.  (Roundtable Weekly, March 29)  
  • The letter notes how the bill would result in a huge tax increase on Americans who use partnerships in businesses of all types and sizes – and would be particularly harmful to the nearly 8 million partners in U.S. real estate partnerships.  
  • The March 26 letter states, “The false narrative surrounding the carried interest issue is that it targets only a handful of hedge fund billionaires and Wall Street executives.  The carried interest legislation is far broader and would apply to real estate partnerships of all sizes-from two friends owning and leasing a townhome to a large private real estate fund with institutional investors.” 

The Real Estate Roundtable opposes both Senate and House carried interest proposals.  General partners earning a carried interest in a real estate partnership bear significant risks beyond direct capital contributions. These risks can include funding predevelopment costs, guaranteeing construction budgets and financing, and exposure to potential litigation over countless possibilities.

House GOP Unveils “Tax Reform 2.0” Outline; Capital Gains Indexing Bill Introduced

Posted on by Trey Jackson

House Ways and Means Committee Chairman Kevin Brady (R-TX) on July 24 outlined a proposed second round of tax cuts to House Republicans, who hope to vote on “Tax Reform 2.0” before the midterm elections..

In an interview with CNBC, Brady expanded on the three core components of the Tax Reform 2.0 proposal.

  • Chairman Brady stated. “With this framework, we are taking the first step to change the culture in Washington D.C. where tax reform only happens once a generation. We plan to work off this framework to build on the growing successes of the Tax Cuts and Jobs Act and ensure this energized economy continues moving forward.”  (House Ways and Means Statement, July 24)
  • In an interview with CNBC, Brady expanded on the three core components of the 2.0 proposal: 
    • making the individual and small business tax cuts enacted by the 2017 Tax Cuts and Jobs Act permanent’
    • promoting family savings through retirement accounts, a new universal savings account, and
    • expanded 529 education savings accounts; and spurring business innovation by allowing new businesses to write off more of their initial start-up costs, and removing barriers to growth.
  • The central feature of the proposal – a permanent extension of tax cuts for individuals – is unlikely to pass the Senate, where it would need Democratic support.  (The Hill, July 24) 

    Senior Ways and Means Committee Member Devin Nunes (R-CA) has introduced legislation (H.R. 6444) to index capital gains to inflation – a proposal that would reduce the tax burden on long-lived assets, including real estate.

  • Although House Republicans aim to vote on “Tax Reform 2.0” legislation in September, a tax technical corrections bill may not be voted on until after the November elections. (Roundtable Weekly, July 20)
  • Meanwhile, senior Ways and Means Committee Member Devin Nunes (R-CA) has introduced legislation (H.R. 6444) to index capital gains to inflation – a proposal that would reduce the tax burden on long-lived assets, including real estate.  An inflation adjustment for capital gains previously passed the House in the 1990s but died in the Senate.  House tax-writers may consider indexing capital gains as part of Tax Reform 2.0.  (The Hill, July 20)
  • Separately, attention this week was focused on a mistake affecting qualified improvement property cost-recovery tax rules. An amendment (# 3597) introduced yesterday by Sen. Pat Toomey (R-PA) to an appropriations bill (H.R. 6147) would correct a drafting error in the Tax Cuts and Jobs Act that unintentionally pushed the recovery period for property improvements from 15 to 39 years.  As a result of the mistake, businesses across the country are delaying, or significantly reducing, capital expenditures for building improvements, undermining job creation and economic activity. (BGov, July 26)
  • Additionally, the Treasury Department has sent draft regulations regarding the new deduction for pass-through business income to the White House Office of Management and Budget (OMB) for formal review.  Under a recent agreement between the two agencies, OMB has 10 days to review the regulations before they are issued, unless the parties mutually agree to extend the review period.  (TaxNotes, July 25)

In January, The Roundtable wrote to Treasury Secretary Mnuchin  offering several suggestions designed to maximize the economic impact of the pass-through deduction and avoid unnecessary disruptions to business activity.  [Roundtable Letter, Jan. 18].

Treasury Issues Regulations on New Pass-Through Business Income Deduction

Posted on by Trey Jackson

The Internal Revenue Service (IRS) and the Department of the Treasury on August 8 released guidance on the new pass-through deduction enacted in last year’s tax overhaul bill. 

“The pass-through deduction is an important tax cut for small and mid-size businesses, reducing their effective tax rates to their lowest levels since the 1930s,” said Treasury Secretary Steven Mnuchin, above. “Pass-through businesses play a critical role in our economy. This 20-percent deduction will lead to more investment in U.S. companies and higher wages for hardworking Americans.” 

  • The Tax Cuts and Jobs Act signed by President Trump in December included a new 20 percent pass-through deduction (section 199A) that can lower the top tax rate on qualifying pass-through business income to 29.6 percent. Such income was previously taxed at a top rate of 39.6 percent.   
  • According to Treasury’s press release, the guidance is intended to: 
    • “Ensure that all small business income below $315,000 for married couples filing jointly (and $157,000 for single filers) is eligible for the deduction”;  
    • “Provide clarity and flexibility for filers over those income thresholds by:  
         • Including ‘aggregation rules’ for filers with pass-through income from multiple sources;… 
         • Issuing guidance relating to specified service, trade or business (SSTB) income above the thresholds, which may be subject to limitation for the purposes of claiming the deduction; and… 
         • Allowing a de minimis exception to avoid unnecessary compliance costs for businesses earning only a small percentage of SSTB income”; and 
    • “Establish anti-abuse safeguards to prevent improper tax avoidance schemes, such as relabeling employees as independent contractors.” 
  • “The pass-through deduction is an important tax cut for small and mid-size businesses, reducing their effective tax rates to their lowest levels since the 1930s,” said Treasury Secretary Steven Mnuchin.  “Pass-through businesses play a critical role in our economy.  This 20-percent deduction will lead to more investment in U.S. companies and higher wages for hardworking Americans.” 
  • “The proposed pass-through regulations are a critical step forward in the implementation of tax reform provisions affecting real estate investment, jobs, and economic activity,” said Jeffrey DeBoer, Real Estate Roundtable President and CEO.  “A regulatory framework for the pass-through deduction is necessary to give taxpayers the certainty they need to move forward with new job-creating real estate projects that strengthen and enhance communities.” 
  • The proposed regulations address several issues affecting real estate, such as the ability to aggregate income from multiple real estate partnerships.  Some areas may need further development, such as the rules related to like-kind exchanges. 
  • In January, The Roundtable wrote to Treasury Secretary Mnuchin offering several suggestions designed to maximize the economic impact of the pass-through deduction and avoid unnecessary disruptions to business activity. [Roundtable Letter, Jan. 18].  

The 184-page proposed regulation on the deduction will be formally published in a future edition of the Federal Register. Stakeholders and other interested parties will then have 45 days to submit public comments, followed by a public hearing on the proposed regulation on October 16.

House Ways and Means Chairman Kevin Brady (R-TX) Releases Tax Bill Addressing “Extenders” and Technical Corrections

Posted on by Trey Jackson

House GOP leaders yesterday delayed a vote on a $54 billion dollar tax bill released Monday (H.R. 88) by House Ways and Means Chairman Kevin Brady (R-TX) that includes tax “extenders” and technical corrections of importance to commercial real estate.  (Brady Statement, Nov. 26 and CQ, Nov. 30) 

GOP leaders yesterday delayed a vote on a $54 billion dollar tax bill released Monday (H.R. 88) by House Ways and Means Chairman Kevin Brady (R-TX), above, that includes tax “extenders” and technical corrections of importance to commercial real estate.  (Brady Statement, Nov. 26)

  • Specific provisions affecting real estate include technical corrections to fix errors in last year’s Tax Cuts and Jobs Act.  The bill would:
  •  
    • shorten the cost recovery period for qualified improvement property, a new category of depreciable property that covers upgrades and improvements to the interior of nonresidential buildings;
    • clarify that the new 20 percent deduction for pass-through business income extends to REIT dividends received by mutual fund shareholders;
    • temporarily extend the expired deduction for energy-efficient commercial building property (Section 179D); and
    • temporarily extend other expired provisions affecting homeowners, such as a deduction for mortgage insurance premiums and a tax exclusion for mortgage debt forgiveness.  (Roundtable Weekly, Oct. 19) 
  • In October, The Roundtable along with 239 businesses and trade groups, wrote to Secretary Mnuchin urging the Treasury Department to provide administrative relief from a drafting mistake that increased the cost recovery period for qualified improvement property (QIP) to 39 years, instead of 15. (Roundtable Weekly, Oct. 12)  

It is uncertain when the wide-ranging tax bill will be considered but debate on the legislation may take place next week.  

Senate Democrats, whose support is needed to assure passage of any tax changes before next year, reportedly, “are determined to win concessions in exchange for providing votes to fix errors in last year’s law.  (Wall Street Journal, Nov. 30)  Yet it remains unclear what concessions Democrats are seeking.  When asked about the bill’s prospects in the Senate, Sen Charles Grassley (R-IA), the likely Senate Finance chairman next year, said “Not if brought up separately, only if it’s put in the funding bill.”  (CQ, Nov. 28). 

Lawmakers May Address Tax “Extenders” and Technical Corrections in Lame Duck Session; Sen. Charles Grassley (R-IA) to Succeed Sen. Orrin Hatch (R-UT) as Chair of Finance Committee

Posted on by Trey Jackson

Congress returned to Washington this week to prepare their lame duck session agenda, which is expected to address a federal government spending bill and possible tax legislation. 

Specific tax policies affecting commercial real estate that may be addressed in the lame duck session include technical corrections to fix errors in last year’s Tax Cuts and Jobs Act. 
  • On Tuesday, outgoing House Ways and Means Committee Chairman Kevin Brady (R-TX) outlined several tax priorities, including legislation that may address tax deduction extensions and 70 to 80 technical corrections (The Hill, Nov. 13).  “We’re prepared and ready if there’s an appetite to move some of these things and get them off of Congress’s plate this year,” said Chairman Brady. (Tax Notes, Nov. 14) 
  • Specific tax policies affecting commercial real estate that may be addressed include technical corrections to fix errors in last year’s Tax Cuts and Jobs Act, including:
    • the cost recovery period for qualified improvement property (QIP);
    • Section 179D reforms to incentivize private sector retrofits for energy efficient building improvements, and
    • other expired provisions affecting homeowners, such as a deduction for mortgage insurance premiums.  (Roundtable Weekly, Oct. 19) 
  • In October, The Roundtable along with 239 businesses and trade groups, wrote to Secretary Mnuchin urging the Treasury Department to provide administrative relief from a drafting mistake that increased the cost recovery period for qualified improvement property (QIP) to 39 years, instead of 15. (Roundtable Weekly, Oct. 12) 
  • On Friday, Senator Charles Grassley (R-IA) announced he would give up his position leading the Senate Judiciary Committee to assume the chairmanship of the Senate Finance Committee when Congress reconvenes in January.  Senator Orrin Hatch, the current Finance Chairman, is retiring after 42 years in the U.S. Senate.  This will be the third time that Sen. Grassley has chaired the Finance Committee, having held the panel’s top job twice in the 2000s. (Bloomberg, Nov. 16)

Congress will return for the lame duck session to address these issues and many more, the week after Thanksgiving.  Roundtable Weekly will resume publication on Nov. 30.

Real Estate, Environmental Groups Recommend Accelerated Depreciation for Energy Efficient Building Equipment

Posted on by Trey Jackson

A broad coalition of real estate and environmental organizations urged congressional tax writers this week to establish an accelerated depreciation schedule for a new category of Energy Efficient Qualified Improvement Property installed in buildings – or “E-QUIP.”  (Coalition E-QUIP Letter, May 8)

  

A broad coalition of real estate and environmental organizations urged congressional tax writers this week to establish an accelerated depreciation schedule for a new category of Energy Efficient Qualified Improvement Property installed in buildings – or “E-QUIP.” (Coalition E-QUIP Letter, May 8)

  • The coalition, led by The Real Estate Roundtable, recommends “a uniform E-QUIP 10-year recovery period [to] promote productive business investment by spurring high performance upgrades in commercial and multifamily buildings. In turn, optimizing energy efficient building performance will help create well-paying jobs in the construction, design, and energy sectors; boost equipment manufacturing; enhance our country’s energy independence; and reduce the built environment’s carbon footprint.”    
  • Legislation supported by The Roundtable is currently pending to fix a technical error from the Tax Cut and Jobs Act regarding depreciation of interior building improvements, known as Qualified Improvement Property (“QIP”).  (Roundtable Weekly,  March 15 and QIP Policy Comment Letter, April 26)  However, even if Congress fixes the QIP mistake, it would not meaningfully encourage commercial and multifamily owners to invest in expensive high-performance building equipment.    
  • The new E-QUIP coalition thus proposes a beneficial 10-year cost recovery period for efficient HVAC, lights, roofs and other components that will save energy and reduce carbon emissions attributable to buildings, their tenants, and other occupants.  
  • Roundtable President and CEO Jeffrey DeBoer said, “The purpose of establishing a new E-QUIP category in the tax code is to stimulate productive, capital investment on a national level that modernizes our nation’s building infrastructure while helping to lower greenhouse gas emissions.  As Congress considers potential tax, infrastructure, and climate legislation, the E-QUIP proposal should have bipartisan appeal on a range of important policies prioritized by Republicans and Democrats.”
  • An elective 10-year, straight-line cost recovery period for E-QUIP expenditures for taxable income, as well as for earnings and profits purposes, is the core of the proposal.  Other elements recommended to Congressional tax writers for consideration in E-QUIP legislation are set forth in the real estate and environmental groups’ coalition letter.   

E-QUIP will be one of many policies affecting commercial real estate discussed during the June 11-12 Annual Roundtable Meeting in Washington DC.

Business Coalition Urges Congress to Correct Cost Recovery Period for Nonresidential Real Estate Improvements

Posted on by Trey Jackson

A coalition of businesses and trade groups, including The Real Estate Roundtable, today urged all members of Congress to cosponsor the Restoring Investment in Improvements Act (H.R. 1869 /  S. 803) – a bill that would correct a drafting error in tax reform.  The legislation would give qualified improvement property (QIP) a 15-year depreciation period and restore its eligibility for accelerated bonus depreciation. (QIP Policy Comment Letter, April 26)

 

A coalition of businesses and trade groups, including The Real Estate Roundtable, urged all members of Congress to cosponsor the Restoring Investment in Improvements Act (H.R. 1869 /  S. 803) – a bill that would correct a drafting error in tax reform.  The legislation would give qualified improvement property (QIP) a 15-year depreciation period and restore its eligibility for accelerated bonus depreciation. (QIP Policy Comment Letter, April 26)

  • House Ways and Means Committee members Jimmy Panetta (D-CA) and Jackie Walorski (R-IN) introduced H.R. 1869 on March 26. The Senate bill (S. 803) was introduced earlier in the month by Sens. Pat Toomey (R-PA) and Doug Jones (D-AL).  (Roundtable Weekly, March 15)
  • The legislation would correct a mistake in the Tax Cuts and Jobs Act of 2017 that lengthened the cost recovery period for QIP, which generally applies to improvements to the interior of existing nonresidential buildings.  
  • The error has resulted in a significantly longer 39- or 40-year cost recovery period.  The intent of Congress was to allow the immediate expensing of QIP – or provide a 20-year recovery period in the case of taxpayers electing out of new limitations on the deductibility of business interest.
  • The April 26 coalition letter to leadership in the House and Senate, as well as leaders of tax committees in both chambers, notes that there is no budget impact to restore the QIP depreciation to 15 years.  
  • Specific examples are offered in the letter to show the negative consequences that the current law is having on QIP investments and commercial renovation projects.  The letter states, “Not surprisingly, it is causing numerous negative ripple effects for individuals and businesses, including on job creation, sales of QIP products and building supplies, property values, building occupancy and rental income, cost-saving energy efficiency gains, and even on fire safety.”
  • Roundtable President and CEO Jeffrey D. DeBoer said, “The Restoring Investment in Improvements Act would enact an immediate and necessary correction to the Tax Cuts and Jobs Act.  It would reverse an unnecessary drag on building investment, construction activity, and job creation.  Congress should move on this common-sense legislation quickly and reinstate a much shorter cost recovery period for building improvements.” 

In the weeks ahead, the House Ways and Means and Senate Finance Committees may address “technical corrections” to the TCJA, such as the cost recovery period for QIP along with other tax legislative priorities. (Roundtable Weekly, March 29)

Bipartisan FIRPTA Repeal Legislation Introduced

Posted on by Trey Jackson

Bipartisan legislation introduced on April 10 by Reps. John Larson (D-CT) and Kenny Marchant (R-TX) would repeal the Foreign Investment in Real Property Tax Act (FIRPTA) – a discriminatory capital gains tax on foreign investors in U.S. real estate.  (Legislative text of the Invest in America Act and one-page summary)

This week, Rep. John Larson (D-CT), above, and Rep. Kenny Marchant (R-TX)  introduced bipartisan legislation, Invest in America Act, that would repeal FIRPTA.

  • FIRPTA’s tax penalty does not apply to any other asset class except U.S. real estate.  The arcane tax, enacted in 1980, discourages capital formation and investment that could create jobs and improve U.S. real estate and infrastructure.  By repealing FIRPTA, the Invest in America Act (H.R. 2210) would unlock foreign capital for productive investment. 
  • Rep. Larson stated, “The American Society of Civil Engineers has given America’s infrastructure a D+ rating. That’s unacceptable. This isn’t a Republican or Democrat issue, this is an American issue. I am proud to introduce the Invest in America Act today with Congressman Marchant to unlock more opportunities to invest in communities in Connecticut and across the nation and to rebuild our infrastructure.”  (Larson-Marchant news release, April 10)
  • Rep. Marchant added, “I am proud to partner with Congressman Larson to introduce the Invest in America Act, which will remove the barriers in our tax code that discourage investments in real estate.  By providing parity to real estate assets under the law, foreign investors will be able to create more opportunities and more prosperity for American families.”
  • The Larson-Marchant bill (H.R. 2210) was introduced with a total of 11 original cosponsors from the tax-writing Ways and Means Committee who represent every major region of the country.  
  • In 2015, Congress passed meaningful reforms to FIRPTA, exempting foreign pension funds and doubling the amount a foreign interest may invest in a publicly traded U.S. REIT.  (Roundtable Weekly, March 18, 2016)

    A  report by the Rosen Consulting Group  (RCG) estimated that FIRPTA repeal would generate an initial increase of between $65 billion and $125 billion in international investment in U.S. commercial real estate.  

     

  • The Real Estate Roundtable and American Institute of Architects released a statement of support for the Invest in America Act yesterday.  RER President and CEO Jeffrey DeBoer said, “The FIRPTA regime is an anti-competitive outlier that deflects global capital to other countries.  Our infrastructure challenges demand a holistic approach and innovative solutions. Now is the time to build on the recent success of the 2015 reforms by eliminating FIRPTA outright and unlocking private capital for even more job growth and infrastructure improvements.”
  • The Roundtable and 19 national trade organizations wrote to Ways and Means Committee Members and other key House lawmakers on March 28, urging them to support the Invest in America Act.  (Coalition FIRPTA letter, March 28)

A report by the Rosen Consulting Group (RCG) estimated that FIRPTA repeal would generate an initial increase of between $65 billion and $125 billion in international investment in U.S. commercial real estate. This new level of activity would lead to the creation of 147,000 to 284,000 jobs throughout the economy and increase taxpayers’ income by $8 billion to $16 billion.  (Unlocking Foreign Investment in U.S. Commercial Real Estate, July 2017)