Ever since losing control of the government in 2006, Republicans have been striving relentlessly to reclaim their hold on power. Throughout their obstructionist escapades during the Obama administration, Republicans made promises to their voters to enact large-scale conservative reforms once voted back into power, and they were especially intent on reversing the enactment of the Obama agenda, including legislation on health care, taxation, and regulation. With Republican control of the White House and both houses of Congress, 2017 would be the GOP’s year to enact its sweeping agenda, paralleling Obama’s legislative achievements of 2009. However, the year was largely a disappointment, and with their failure on healthcare reform, Republicans were desperate to end it with any sort of victory. That victory came in the form of the Tax Cut and Job Act (TCJA) of 2017. This much talked about bill grabbed headlines during 2017’s final months with its massive reduction in the corporate tax rate, its creation of $1 trillion dollars in debt, and its hasty and careless process.
With the bill now in effect, its specifics need to be more widely and better understood. While it would be unfair to label the bill as simply tax cuts for the rich, it can not be considered comprehensive tax reform. The right has presented the TCJA as akin to the infamous bipartisan and technical Tax Reform Act of 1986, while the left has likened it more to the Bush Tax Cuts of 2001 and 2003. The content of the bill is somewhere in between, having elements of praiseworthy reform along with significant tax cuts concentrated among high income earners. The bill also creates new problems in our tax code by adding distortions that will have consequences for our economy and tax collection.
The Good (Reform): Income Tax Reform, Lower Corporate Rate, Corporate AMT Repeal
What makes tax reform objectively “good,” at least to lawyers and economists, is whether or not it tackles some of the inefficiencies within the tax code that inhibit growth, either through simplification or removing aspects that distort market incentives.
On the individual side, the bill reduces some loopholes in the income tax, which economists have widely criticized as inefficient and unfair. When filing income taxes, households can either itemize their deductions or use the standard deduction. Itemizing allows a household to take advantage of special tax deductions to reduce its tax burdens, such as deducting its mortgage interest, state and local tax (SALT) payments, and charitable contributions from its taxable income. On the other hand, filers who utilize the standard deduction simply deduct a lump sum from their taxable income. Since itemizers also tend to have higher incomes than standard deduction filers, the benefits of itemized deductions are more heavily skewed to top earners. These are the “loopholes” the rich exploit to reduce their tax burdens, which the tax bill reforms. The TCJA would double the standard deduction, leaving only 10 percent as opposed to 30 percent of households in 2017 to itemize, thus reducing the value of these itemized deductions. Doubling the standard deduction would be met with eliminating personal exemptions, simplifying the tax code somewhat, and providing some net tax relief to the middle class, at least until the new inflation measure wipes it out.
The GOP bill would also cap these special deductions at certain levels, including the SALT deduction (capped at $10,000) and mortgage interest deduction (capped for homes worth $750,000), whose benefits have been skewed primarily to high income taxpayers. And with far fewer itemizers, other special loopholes, including charitable contributions, would be reduced in value. While the SALT deduction is more controversial since it is utilized more heavily in higher tax blue states, limiting the value of mortgage interest deduction and charitable contributions is a noteworthy reform. While their goals are commendable (encouraging homeownership and charitable donations, respectively) there is very little evidence that they succeed in even these tasks. And along with reducing the tax burdens on the very wealthy, they also have some perverse effects, such as raising home prices and creating tax avoidance opportunities, respectively. Reducing the value of tax loopholes that go mostly to the rich is an accomplishment both sides can commend.
On the business side, which is what the TCJA is really focused on, the tax rate on corporate profits has been reduced from 35 percent to 21 percent. The corporate income tax has many problems; with its high rate and swiss-cheese like loopholes, it creates inefficient economic distortions, thus leading both Democrats and Republicans alike to call for its reform,. During his time in office, Obama had proposed a 28 percent corporate tax rate along with reductions in special corporate loopholes to make the rate reduction “revenue neutral.” This is formally known as “base-broadening,” since the revenue lost from a lower rate would be compensated by making more income subject to taxation, or a broader tax base. Under new law, with a lower corporate rate and expanded investment incentives, including accelerated depreciation and expensing, proponents argue that this would encourage more investment, make the U.S. more competitive internationally, bring back overseas wealth, and lead to faster growth. However, if other countries respond by cutting their own corporate rates, the U.S. would lose whatever competitive edge it gained, and any growth effects from the TCJA are predicted to be temporary and modest. But overall, the corporate tax cut has been long overdue, making it a noteworthy reform.
The bill also adds simplicity for corporations through the repeal of the corporate alternative minimum tax (AMT), which, while raising little revenue and contributing little to fairness, imposes heavy compliance costs and distorts investment decisions.
The Bad (Fairness): Lower Corporate Rate, Estate Tax Reform, Individual Mandate Repeal
While some Americans may be more concerned with fairness and equity than others, legislation that benefits top earners while neglecting or even burdening those in the middle and at the bottom is rightly viewed by most as unfair. Americans typically desire a progressive tax system, which assigns tax burdens based on the ability to pay or “vertical equity,” the principle of treating unequals unequally. The reduction in progressivity is seen by many as “the bad” of the bill.
Most Americans recognize that the TCJA’s benefits will primarily be concentrated among “the rich.” While the vast majority of American households may experience some benefit from the tax bill, most of these provisions are set to expire by 2025, with tens of millions of Americans facing tax increases afterwards. By 2027, meaningful tax cuts will be experienced nearly exclusively by the wealthiest households. Although the Trump administration has stated that the corporate tax reduction will primarily benefit American workers, this statement is unsupported by evidence. Most economists agree that the burden of the corporate tax falls primarily on capital owners, or shareholders, as opposed to workers (about 75 percent-25 percent respectively) making the corporate tax, while admittedly not the best way to tax the rich, progressive. One-third of the tax relief for capital owners won’t even benefit American investors, but rather foreign investors who own American stock. Overall, the corporate tax reduction would be primarily a windfall to investors, both foreign and domestic, along with high-earning employees. The average worker won’t see much from the corporate tax cut, except if they’ll be paying for the deficits it generates.
Next is the estate tax, which, while being exclusively paid for by the top 0.2 percent of estates in 2017, will be paid by less than 0.1 percent, this year.. This would be through an increased exemption of estates subject to the tax from about $5 billion (about $11 billion for married couples) to $10 billion (about $22 billion for married couples). Despite the unpopularity of the estate tax, it is the most progressive part of the tax code and good policy whose reduction would likely perpetuate wealth inequality and serve as a giveaway to the nation’s wealthiest heirs.
Then there is the repeal of the individual mandate of the Affordable Care Act (ACA), the requirement that individuals without insurance must purchase health insurance through state exchanges, for which the penalty will be $0 by 2019. The repeal of the mandate would reduce spending since it would reduce the amount of people with federally subsidized health insurance. The Congressional Budget Office estimates that as a result of its repeal, 13 million fewer people will have health insurance in the next decade, comprised of individuals who have been priced out of the market or who have forgone purchasing insurance. This would result from premiums increasing by 10 percent annually for most of the decade for those who purchase insurance on the individual market (as opposed to government- or employer-provided insurance).
Despite being the most unpopular aspect of the ACA, the mandate has been necessary to help insurance companies stay solvent in the face of their inability to discriminate based on preexisting conditions. With the mandate repeal, the more popular parts of the bill will be difficult for insurance companies to comply with, requiring either a windfall of federal subsidies or high premiums to keep them afloat. The spike in premiums created by the repeal would price out many middle income households who need, but struggle to afford, health insurance. While the healthy and wealthy will be less affected by the mandate repeal, as they are more likely to be provided health insurance through their employer, poorer and less healthy individuals will face greater difficulty obtaining and keeping insurance. These new provisions would make the tax code less progressive and less fair for most Americans.
The Ugly (Distortions): Special Passthrough Treatment, Lower Corporate Rate
While not all Americans are as concerned with fairness as others, all would agree (as would economists) that a tax system shouldn’t needlessly waste resources through distorted incentives. Thus, provisions of the tax bill that do create waste should be considered the “ugly” parts. The principle of “horizontal equity,” or taxing equals equally, has been established as a fundamental tenet of good tax policy. Whether it affects real activity decisions, legal classification, or just timing, violating horizontal equity leads to inefficiencies. This is why tax experts typically view a broader tax base and lower rates as objectively good tax reform, taxing everything a bit and ideally at the same rate. And although Republicans have portrayed themselves as defenders of this principle, viewing loopholes in the tax code as government-manufactured waste, distortion, and complication, this bill would create some ugly loopholes that would produce all three.
A group of tax law professors even came out with a paper titled “The Games They Will Play” outlining the myriad of tax planning opportunities individuals and businesses may exploit to get the best deal out of their tax obligations from the TCJA, making the new tax legislation even more expensive than the deficits it’s predicted to create. This isn’t what good policy is supposed to do. They write, “The most serious structural problems with the bill are unavoidable outcomes of Congress’s choice to preference certain taxpayers and activities while disfavoring others—and for no discernible policy rationale. These haphazard lines are fundamentally unfair and inefficient, and invite tax planning by sophisticated taxpayers to get within the preferred categories.”
What many view to be the worst part of the TCJA is the new special treatment of pass-through entities. Pass-through entities make up about 95 percent of all business, which include sole proprietorships, partnerships, and S-corporations (anything but C-corporations). And pass-throughs vary in size, ranging from your local mom-and-pop shop to large multinational law and accounting firms. Their name derives from the business income being “passed through” to the owner’s individual income taxes so that when the business income is distributed, it’s only subject to the owner’s income tax. Business owners and workers are thus treated the same, taxwise. Business owners who rely on pass-through income will experience a windfall from the new tax laws, taking the form of a special 20 percent deduction for pass-through income.
What’s important to note for this special pass-through treatment is that those who do the exact same work but are classified differently are treated differently. Patricia Cohen of the New York Times explains this well. “Consider two chefs working side by side for the same catering company, doing the same job, for the same hours and the same money. The only difference is that one is an employee, the other an independent contractor. Under the Republican plans, one gets a tax break and the other doesn’t.” While special treatment for businesses may sound nice, without a proper definition of what constitutes a business, it would encourage more people to expend resources to also get special treatment. While the tax plan has “guardrails” in place to try preventing this reclassification, they are rather vague and complex, requiring new rules and regulations to be put in place, posing a problem for the underfunded IRS. The new tax bill creates real problems for economic incentives. Workers can change their legal classification (like becoming a pass-through entity) and businesses can change real activities (like moving production overseas to benefit from the new “territorial” tax system), not because it’s most efficient, but because the tax rates are preferable.
And while the reduction of the corporate tax rate was needed, it has gone too far, creating a large difference between the top pass-through tax rate (top rate at 37 percent) and the corporate rate (top rate at 21 percent), which would incentivize income sheltering through corporations. Jobs would be created not for middle class workers, but for lawyers and accountants, purposed not for production and expansion, but for deal seeking. While Republicans have likened their bill to the infamous and comprehensive Tax Reform Act of 1986, the 1986 bill addressed horizontal equity concerns by taxing capital gains and ordinary income at the same top rate (28 percent), while this bill violates horizontal equity. Rather than fixing distortions, this bill creates distortions in need of fixing.
This review also doesn’t take into account the nearly $1.5 trillion debt the TCJA would create, which can inhibit growth, burden low- and middle-income families, and threaten fiscal sustainability. With the rushed problems presented in the bill, its technical glitches will require some serious fixing from both sides of the political aisle. If Democrats are to retake Congress in 2018 and the White House in 2020, a comprehensive tax reform plan must be made that addresses the many flaws in the TJCA along with real reform aimed at enhancing simplicity, fairness, and revenue collection.
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