Tag: Tax Policy

House Republicans Reintroduce Bill to Make TCJA Deductions and SALT Cap Permanent

Posted on by Trey Jackson

House Ways and Means Committee Vice Chairman Vern Buchanan (R-FL)Tax provisions affecting individuals and small businesses originally enacted as part of the Tax Cuts and Jobs Act (TCJA) of 2017—along with the state and local tax (SALT) deduction cap—would be made permanent under legislation reintroduced this month by House Ways and Means Committee Vice Chairman Vern Buchanan (R-FL), above. (The Bond Buyer, Feb. 13 and Legislative Text)

The TCJA Permanency Act

  • Buchanan’s bill (H.R.976) includes a Roundtable-supported provision to make permanent the 20 percent deduction for qualified pass-through business income (Section 199A). The legislation would also permanently lower tax rates for individuals and families and maintain the higher standard deduction.
  • There are currently 83 co-sponsors of The TCJA Permanency Act. Buchanan has led five of the six Ways and Means Subcommittees and currently sits on the Joint Committee on Taxation, a small group of the most senior tax policy writers in Congress. (Buchanan news release, Feb. 13)
  • Without Congressional action, 23 different provisions of the 2017 Republican tax law are set to expire after 2025, including the SALT deduction cap. Buchanan originally filed legislation to make the TCJA cuts permanent last September during the Democratic-controlled 117th Congress.
  • Buchanan stated that funding for the Federal Aviation Administration could be a legislative vehicle to attach the TCJA bill, since no major standalone tax bills are expected this year. (BGov, Feb. 23)

SALT Caucus Relaunched

SALT Caucus 2023

  • ​More than 20 members of the House relaunched the SALT Caucus this month as part of their push to repeal the $10,000 cap limit on the federal deduction for state and local taxes. (News conference video, Feb. 8 and Tax Notes, Feb. 9)
  • The cap is scheduled to sunset after 2025, but SALT caucus members want relief sooner while pledging to fight attempts to extend the cap. (Rep. Gottheimer news release, Feb. 9)
  • “I like the odds of having a bunch of new Republicans from states that need to restore SALT,” said SALT Caucus Co-Chair Josh Gottheimer (D-NJ). “So if you want to talk, this is the caucus to talk to to get this done, to restore SALT and make life more affordable.” (Roll Call, Feb. 8)

More than 30 states and local jurisdictions have enacted a SALT workaround for pass-through businesses, S-corporations, and some LLCs. (CNBC video Feb. 13)

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New House Republican Ways and Means Chairman Promises Focus on Working Families, Wages, and Investment

Posted on by Trey Jackson

House Ways and Means Committee Chairman Jason Smith (R-MO)

Rep. Jason Smith (R-MO), above, won a three-candidate race this week in the 118th Congress to become the youngest-ever chairman of the powerful House Ways and Means Committee, which has jurisdiction over tax policies affecting commercial real estate. Former Ways and Means Chair Richard Neal (D-MA) now becomes the panel’s ranking member. (Roll Call and Wall Street Journal, Jan. 9)

Chairman Smith

  • Rep. Smith is a 42-year-old lawyer who was first elected to the House in 2012. He served as the top Republican on the House Budget Committee in the previous Congress, and is a close ally of new House Speaker Kevin McCarthy (R-CA). (PoliticoPro, Jan. 9)
  • Rep. Smith was a leading supporter of Roundtable-supported legislation introduced in 2021 to make permanent the 20 percent deduction for qualified pass-through business income (Section 199A). The pass-through deduction was enacted on a temporary basis as part of the Tax Cuts and Jobs Act (TCJA) in 2017. Rep. Smith also spoke at The Roundtable’s Tax Policy Advisory Committee (TPAC) in June 2016 at the height of the tax reform debate. (Smith news release, Feb. 26, 2021 and stakeholder letter of support).
  • There are only five remaining Republican members on Ways and Means who served on the panel when the TCJA was enacted. Several TCJA provisions are scheduled to expire at the end of 2025, including Section 199A and the limitation on the deductibility of state and local taxes. (Wall Street Journal, Jan. 9)

A New Agenda

House Ways and Means Committee doorway

  • On Monday, Ways and Means Chairman Smith stated, “We will build on the success of the Tax Cuts and Jobs Act and examine how our policies can reward working families with a tax code that delivers better jobs, higher wages, and more investment in America.”  He added that he would aim to use the tax code to strengthen American supply chains, encourage domestic energy production, and achieve energy independence. (Smith statement, Jan. 9)
  • On Dec. 7, 2022, Rep. Smith also discussed key priorities that should be addressed by the Ways and Means Committee with Punchbowl News. (Watch video)
  • House Republicans added 10 new members to the Ways and Means Committee on Jan. 11, and six Republican women will be part of the 25-seat majority on the panel. Subcommittee chairs will not be decided for several weeks, according to Chairman Smith. (BGov, Jan. 12)

TPAC will discuss industry tax priorities in the 118th Congress during their next meeting on Jan. 25 in conjunction with The Roundtable’s State of the Industry Meeting in Washington, DC.

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Treasury Dept. Issues New Rules on Taxation of Foreign Investment in U.S. Real Estate

Posted on by Trey Jackson

Foreign Investment in Real Property Act - book

On December 28, Treasury and the IRS released new tax regulations affecting foreign investment in U.S. real estate. 

FIRPTA

  • Among the changes, a proposed rule would repeal a long-standing private letter ruling that foreign investors have relied on when structuring inbound investments. 
  • Under current law, shareholders of domestically controlled REITs are not subject to the Foreign Investment in Real Property Tax Act (FIRPTA)—a statutory regime that subjects foreign investors to capital gains tax on their U.S. property investments. 
  • The proposal, if finalized, would expand the reach of FIRPTA by denying a REIT’s status as domestically controlled if a U.S. corporate shareholder of the REIT is foreign-owned. In other words, the rule would look through a domestic C corporation that owns the REIT, even if the C corporation is a U.S. taxpayer that pays U.S. income tax. 
  • The proposed regulation surprised foreign investors and real estate fund managers who have relied on a 2009 IRS private lettering rule, which held that a domestic C corporation that owns shares in a REIT is a U.S. owner for purposes of determining whether the REIT is domestically controlled. 
  • The proposed rule appears to conflict with policies underlying FIRPTA-related ownership attribution changes enacted in the 2015 PATH Act.  As a practical matter, the tax consequences of the proposal are retroactive because they would apply to existing investments made years ago. (Weil Tax Alert and Skadden Insights)

Additional Provisions & Regulations

Treasury Department

  • Other provisions in the proposed regulations are more favorable. For example, they include rules that allow a sovereign wealth fund to preserve the tax exemption applicable to foreign governments if the fund has only a minority, non-controlling interest in a U.S. real estate business. 
  • Simultaneously, Treasury also released final regulations last month related to the FIRPTA exemption for foreign pension funds, which the Roundtable worked to enact in 2015. The final regulations are largely positive and should facilitate even greater investment in U.S. real estate by qualified foreign pension funds. 

The Real Estate Roundtable’s Tax Policy Advisory Committee (TPAC) has created a working group to develop formal comments and respond to the recent Treasury releases.

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Washington Leaders Aim for December Funding Deal; Lawmakers Seek to Include Tax Measures

Posted on by Trey Jackson

Capitol with cirrus clouds

President Biden met with congressional leaders on Tuesday to discuss the legislative agenda for the remaining weeks of the lame duck session before the new Congress begins on Jan. 3 with a House Republican majority. 

Omnibus vs CR

  • The meeting between President Biden and Senate Majority Leader Charles Schumer (D-NY), Senate Minority Leader Mitch McConnell (R-KY), House Speaker Nancy Pelosi (D-CA) and House Minority Leader Kevin McCarthy (R-CA) also focused on lawmakers efforts to reach a potential deal on a massive “omnibus” spending bill before current government funding expires on Dec. 16. (Politico, Nov. 29)
  • There is a possibility that Congress could pass a one-week continuing resolution (CR) to extend current funding until Dec. 23 to buy more time to reach an agreement.

  • Sen. McConnell commented on the White House meeting that there is “… widespread agreement that we’d be better off with an omnibus than a CR, but there are some significant hurdles to get over to do that.” (The Hill, Nov. 29)
  • Attempts to attach a wide variety of other policy riders to an omnibus package—including tax extenders affecting commercial real estate—could become more difficult as the holiday break draws closer. (Wall Street Journal, Nov. 29 and Roundtable Weekly, Nov. 18)
  • House Ways and Means Chairman Richard Neal (D-MA) this week expressed optimism about negotiations on tax measures that may be included in an omnibus, including “extenders” of tax incentives that have expired or are set to lapse after 2022. (CQ, Nov. 30) 
  • House Speaker Pelosi said yesterday that if Congress fails to reach a year-end spending bill in the coming weeks, then a “last resort” would be a year-long CR. (Politico video and Politico Pro, Dec. 1) 

Real Estate-Related Tax Measures 

Gavel and books with city in background

  • A bipartisan group of 54 House lawmakers sent a letter this week to House leadership that requested the inclusion of two affordable housing provisions from a bipartisan bill (H.R. 2573) “in any year-end legislative vehicle.” (BGov, Nov. 28 and PoliticoPro, Nov. 29)
  • The Nov. 28 letter led by Reps. Suzan DelBene (D-WA) and Brad Wenstrup (D-OH) urged House Speaker Pelosi and Minority Leader McCarthy to expand and strengthen the Low Income Housing Tax Credit (LIHTC). 

  • The letter recommended extending a temporary increase in credit allocations enacted in 2018—and decreasing the amount of private activity bonds that are needed to access low-income housing credits (in the absence of specific credit allocation from a state housing authority). Studies suggest the latter proposal could increase affordable rental housing production by more than one million units over 10 years. (Novogradac 2020) 
  • Other important tax proposals vying for consideration include bipartisan, real estate-related bills. The first would modify REIT-related party rules to allow REITs to provide additional equity investment in struggling tenants. The second would modernize outdated tax rules that unfairly accelerate the income of condominium developers that pre-sell condo units during the construction process.

The Roundtable strongly supports these efforts and will discuss affordable housing and tax policy developments during our 2023 State of the Industry and Policy Advisory Committee meetings on Jan. 24-25 in Washington, DC.

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Treasury Issues Labor Guidance on Clean Energy Incentives; Roundtable Comments on EV Charging Station Credit

Posted on by Trey Jackson

The Treasury Department on Wednesday released initial guidance on labor standards for companies to qualify for increased incentives in the Inflation Reduction Act (IRA), passed by Congress in August. (Federal Register, Nov. 30 | CNBC, Nov. 29 | Roundtable Weekly, Aug. 12)

Wage, Apprenticeship Guidance

  • The IRA allows certain clean energy projects to qualify for “bonus” tax incentives (five-times “base” rates) if they meet prevailing wage and apprenticeship requirements.
  • This “bonus” rate structure applies to commercial installations of solar panels and other clean energy technologies (Section 48 credit), EV charging stations (Section 30C credit), and energy efficient building equipment (Section 179D deduction).
  • Treasury’s guidance directs taxpayers and their contractors to the federal government’s sam.gov website to search for geographically-appropriate wage determinations for construction jobs relevant to the IRA’s clean energy projects. If no labor classification for the planned work is available, a prevailing wage determination can be requested from IRAprevailingwage@dol.gov.
  • The guidance also explains that certain percentages of “labor hours” on a qualifying clean energy project must generally be performed by apprentices from registered programs. (Treasury FAQs on prevailing wage and apprenticeships, Nov. 29)
  • The guidance takes effect for qualifying projects that start construction on or after January 29, 2023.  See Treasury Notice and news release.
  • The Real Estate Roundtable addressed labor and other IRA issues in comments submitted Nov. 4 to Treasury and the Internal Revenue Service (IRS). [Roundtable Weekly, Nov. 4 and Oct. 7 | Roundtable IRA Fact Sheet, Sept. 20].

EV Charging Stations 

  • The Real Estate Roundtable submitted separate comments today to Treasury and IRS on the Section 30C tax credit for EV charging stations—or “Alternative Fuel Vehicle Refueling Property” as amended by the Inflation Reduction Act (IRA).
  • The Roundtable comments urge the IRS to issue guidance to clarify the components of EV charging property that qualify for the credit, the geographic areas that are 30C-eligible, and depreciation matters.
  • According to the Wall Street Journal, “Budget estimators expect around $1.7 billion in tax credits for chargers or other alternative-fuel equipment to be claimed over a 10-year period.” (WSJ, Nov. 29)

Treasury’s guidance on the IRA’s clean energy tax incentives and will be among the issues discussed during The Roundtable’s Jan. 24-25, 2023 State of the Industry and Policy Advisory Committee meetings in Washington, DC. 

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House Republicans Win Majority as Democrats Face Leadership Transition; Lame Duck Session May Include Tax Extenders

Posted on by Trey Jackson

Capitol reflective photo

Significant transition came to Washington this week as Republicans officially secured a slim majority in the House of Representatives for the 118th Congress that convenes on Jan. 3. The GOP will control House committees for the final two years of President Biden’s current term, ensuring a clash of policy approaches. (Associated Press, Nov. 17 and Wall Street Journal, Nov. 16)

New House Leadership

Nancy Pelosi steps down as Democratic House Leader

  • Confirmation of the new majority ushered in leadership votes in both chambers. House Speaker Nancy Pelosi (D-CA), above, and Majority Leader Steny Hoyer (D-MD) announced they will step aside while continuing to serve in Congress. (Pelosi’s House floor comments | C-Span video, Nov. 17 | The Hill, Nov. 17)
  • The announcements pave the way for a new generation of House Democratic leadership likely to be filled by Reps. Hakeem Jeffries (NY) as minority leader; Katherine Clark (MA) as House whip; and Pete Aguilar (CA) as caucus chair. (Politico, Reuters and Wall Street Journal, Nov. 18 | Business Insider, Nov. 17)
  • House Republicans voted this week to nominate House Minority Leader Kevin McCarthy (CA) for speaker. (Axios and NBC News, Nov. 15)
  • Other members of the House Republican leadership team include Representatives Steve Scalise (LA), Elyse Stefanik (NY), and Tom Emmer (MN).  (The Hill and Times Union, Nov. 15)
  • Several House races remain too close to call. (NY Times, Nov. 18)
  • In the Senate, Minority Leader Sen. Mitch McConnell (R-KY) defeated a challenge by Sen. Rick Scott (R-FL) for Republican Minority Leader. (Louisville Courier Journal and USA Today, Nov. 16)
  • Democrats retained their control of the upper chamber and Sen. Chuck Schumer (D-NY) will continue in his position as Senate Majority Leader. (BuzzFeed, Nov 16)

Lame Duck Session

Senate Finance Committee Chairman Ron Wyden (D-OR)

  • During the lame duck session, lawmakers will consider which policy riders to attach to must-pass spending legislation. Current government funding expires on Dec. 16.
  • Tax issues of importance to CRE that may be considered include rules related to business interest deductibility and an expired, temporary increase in allocations of low-income housing tax credits (LIHTCs) to states. Additionally, the 100% bonus depreciation benefit starts phasing down at the end of this year. (BGov, Nov. 16 and Roundtable Weekly, Nov. 11)
  • Senate Finance Chair Ron Wyden (D-OR), above, said this week that tax extenders are “obviously” a priority for the panel. “All of the negotiators are committed to getting this done before we wrap up,” Wyden commented. (PoliticoPro, Nov. 15)
  • Wyden added that he is also focused on energy and housing issues, including a new tax break to subsidize housing for average Americans. “There’s room to work on these issues in a bipartisan way as well,” Wyden noted. “Housing tax credits, for example, have long had bipartisan support.” (BGov, Nov. 14)

Rep. Kevin Brady of Texas, the top Republican on the tax-writing House Ways and Means Committee, last week said he is talking with Democrats about a potential lame duck deal on taxes. (PoliticoPro, Nov. 10)

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Roundtable Submits Comments to IRS on New Clean Energy Tax Incentives

Posted on by Trey Jackson

The Real Estate Roundtable submitted extensive comments to Treasury and the Internal Revenue Service (IRS) today that address various clean energy tax incentives in the Inflation Reduction Act (IRA) passed by Congress in August. [Nov. 4 letter and Roundtable Weekly, Aug. 12]

Need for Clarifications

  • The Roundtable’s comments are in response to recent IRS notices on a host of issues affecting CRE. [Roundtable Weekly, Oct. 7 and Roundtable Fact Sheet, Sept. 20]. The letter requests further guidance and clarifications that would:
    • Allow businesses to “layer” multiple credits and deductions on the same buildings;
    • Support building retrofits that contemplate an asset’s “conversion,” such as from multifamily to office, within the revised building efficiency incentive under Section 179D;
    • Maximize installations of solar, wind, and other technologies to feed renewable power to buildings onsite—while also allowing property owners to “sell” excess generation back to the grid;
    • Optimize clean power deployment in low-income housing and economically distressed areas;
    • Offer a “safe harbor” for employers seeking the IRA’s credit boosts when they pay prevailing wages to laborers and mechanics involved in energy project construction and installation; and
    • Capitalize on changes to the tax code that would allow REITs, partnerships, and other businesses to “transfer” certain clean energy credits to third parties.

Roundtable Advocacy

  • Roundtable President and CEO Jeffrey DeBoer stated, “The Roundtable’s comments to policymakers will help ensure that the Inflation Reduction Act spurs new investments in clean energy and climate-saving measures that benefit our industry and our country.”
  • The Roundtable letter was developed with input from its Sustainability and Tax Policy Advisory Committees. Treasury and the IRS are expected to start issuing implementing guidance before the end of the year.
  • Roundtable Board Member and Sustainability Policy Advisory Committee Chair Tony Malkin, center in photo above, (Chairman, President, and CEO, Empire State Realty Trust, Inc.) led a panel discussion in September with Roundtable staff on how the IRA’s “clean energy” tax incentives impact CRE. [Watch the discussion].

IRA incentives were discussed this week during a Blackstone ESG Summit panel featuring former Vice Chair of The Roundtable’s Sustainability Committee, Dan Egan (BX’s Americas Head of Real Estate ESG) and Duane Desiderio, Roundtable Senior Vice President and Counsel.

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Real Estate Industry Urges Lawmakers to Consider Tax Incentive for Property Conversions

Posted on by Trey Jackson
CRE with green trees

A Roundtable-led coalition of 16 national real estate organizations on Oct. 12 recommended certain enhancements and expansions to the Revitalizing Downtowns Act (S. 2511, H.R. 4759). The bill was introduced by Sen. Debbie Stabenow (D-MI) and Rep. Jimmy Gomez (D-CA) to encourage the conversion of older buildings into new uses. (Coalition letter) 

Qualified Property Conversions Credit 

  • The coalition noted that many buildings are being reimagined and repurposed to address a severe shortage of housing and meet other post-pandemic business needs. Where appropriate, property conversions can be a cost-effective means to develop new housing supply, create jobs, and generate critical sources of local property tax revenue while saving energy and reinvigorating communities.

  • The Revitalizing Downtowns Act would provide a 20 percent tax credit for qualified property conversion expenditures. The credit is modeled on the historic rehabilitation tax credit and could be used for office buildings that are at least 25 years old at the time of the conversion.

  • An office-to-residential conversion project may qualify for the credit if the project provides at least 20 percent affordable housing—or is subject to an alternative affordable housing arrangement under state or local policy, ordinance, or agreement. 

Real Estate Industry Recommendations 

Denver

  • The recommendations include:
    • (a) expanding the category of properties eligible for the credit to include other types of commercial buildings, such as shopping centers and hotels;
    • (b) extending the incentive to real estate investment trusts (REITs); and
    • (c) reducing the conversion expenditure requirement from 100 percent of the building’s basis to 50 percent—along with half-a-dozen other suggestions.

  • The coalition letter is the work product of a property conversions working group created by The Real Estate Roundtable’s Tax Policy Advisory Committee. The working group has reviewed and considered the challenges and impediments confronting potential property conversion activities.  

Recent media articles on property conversions include “Cities push to convert deserted office buildings into housing” (Axios, Sept.  28) and “Multifamily Developers Turn Some Dead Office Space into Apartments” (WealthManagement.com, Oct. 4). 

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Treasury Requests Public Input on Inflation Reduction Act Energy Tax Incentives

Posted on by Trey Jackson

U.S. Treasury DepartmentThe Treasury Department and Internal Revenue Service (IRS) issued six separate notices this week to gather public input regarding the clean energy tax credits and deductions in the Inflation Reduction Act (IRA). (Treasury Fact Sheet, Oct. 4 and Roundtable Weekly, Sept. 30)

CRE Impact

  • The Treasury and IRS notices most relevant to the real estate industry concern the new law’s provisions regarding:
    • Incentives to improve energy efficiency such as the tax deduction for commercial buildings (Section 179D) and the credit for single- and multi-family residential construction (Section 45L);
    • Credits for specific clean energy technologies like solar panels, energy storage, combined heat and power systems, dynamic glass, and grid interconnection property (Section 48);
    • Credit monetization which can allow businesses to transfer the amount of certain credits to third parties; and
    • Enhancements to boost the value of certain credits where projects are located in economically distressed areas, or that meet labor requirements for prevailing wages and apprenticeship hiring.
  • Comments are due to the Treasury and IRS by November 4.

  • Roundtable fact sheets detail the IRA’s Clean Energy Tax Incentives (Sept. 20) and Revenue Provisions (Aug. 17).

Rapid Implementation

Bloomberg Center energy efficiency canopy

  • Congress authorized $270 billion to the IRA’s clean energy tax incentives – putting Treasury and the IRS, in coordination with the Energy Department and the Environmental Protection Agency, at the forefront of implementation. (E&E Greenwire, Oct. 5 and Roundtable Weekly, Aug. 12)
  • One of Treasury’s guiding principles for the public comment process is to “provide clarity and certainty” for businesses and other taxpayers to access the incentives, “so the climate and economic benefits can take effect as quickly as possible.” (Treasury Fact Sheet)

  • White House Senior Adviser John Podesta said, “We have to get implementation right. That means we have to listen, engage, and move quickly to translate policy into action.” (Reuters and Bloomberg Law, Oct. 5)

The Roundtable, working through its Sustainability and Tax Policy Advisory Committees (SPAC and TPAC), will coordinate with industry partners to develop comments to the Treasury and IRS notices that highlight CRE clean energy priorities.

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Yellen, House Committee Promote Inflation Reduction Act Climate Investments; CRE Webinars Focus on New Tax Incentives

Posted on by Trey Jackson

Incentives in the Inflation Reduction Act (IRA) will accelerate private sector investment in clean energy technologies, according to remarks this week from Treasury Secretary Janet Yellen, above. (Yellen’s remarks, Sept. 27) 

  • Yellen announced that Treasury will host “a series of roundtable discussions to help inform our efficient and effective implementation of the tax credits.” (Barron’s and AFP News, Sept. 27)
     
  • A House Committee yesterday considered how the IRA’s climate investments will lower families’ utility bills, create jobs, and expand U.S. manufacturing of green tech and electric vehicles. (Video of Congressional hearing)

  • Several of the IRA’s revisions to the federal tax code can help the U.S. real estate sector reduce GHG emissions. Roundtable fact sheets detail the IRA’s Clean Energy Tax Incentives (Sept. 20) and Revenue Provisions (Aug. 17)

Industry Education on the IRA

Duane Desiderio, Tony Malkin, and Ryan McCormick
  • Roundtable Senior Vice Presidents Ryan McCormick (tax counsel), right, and Duane Desiderio, left, (energy counsel) recently participated in a number of panel discussions on how the IRA’s tax credits and deductions can spur energy efficiency and renewable energy projects in buildings. (Roundtable’s IRA fact sheet)
     
  • McCormick participated in a Sept. 27 Engineered Tax Services webinar. (Powerpoint slides) 
  • Desiderio participated in a Sept. 27 CBRE podcast moderated by Co-Chair of The Roundtable’s Research Committee, Spencer Levy (Senior Economic Advisor, CBRE) (Podcast transcript).
  • Desiderio also participated in a Sept. 28 briefing hosted by the Urban Land Institute (ULI) featuring members of The Roundtable’s Sustainability Policy Advisory Committee (SPAC)­­ – Immediate Past Vice Chair Dan Egan (Managing Director, Real Estate ESG – Americas, Blackstone), Suzanne Fallender (VP Global ESG, Prologis), and ULI EVP Billy Grayson.

The Treasury Department is expected to issue multiple regulations and guidance documents in the coming months to implement the new law. The Roundtable plans to submit comments as the new rules are proposed to help accelerate industry investments in tackling the climate crisis. 

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