With the President’s 2009-2010 stimulus plan now completed, his health care reform enacted (although still the subject of pending litigation regarding its constitutionality), several tax bills enacted in 2010, and his 2012 Budget released, the stage has been set in 2011 for serious discussions or actions relating to the deficit and tax reform. This updated Alert highlights fundamental changes already signed by the President, announced by the Administration, or expected from Congress and from new regulatory and enforcement officials that should be considered when making business decisions. Topics covered here include:
On February 17, 2009, exactly four weeks after his inauguration, President Obama signed into law the economic stimulus plan, the “American Recovery and Reinvestment Act of 2009” (the “Stimulus”). The Stimulus was large—$787 billion—including approximately $301 billion of tax cuts and the rest in increased spending. At this point, virtually all of the Stimulus monies either have been spent, or are committed to be spent. The Stimulus also provided approximately $13 billion in tax benefits for businesses, mostly for small businesses, including a five-year carryback of 2008 net operating losses for businesses with gross receipts of $15 million or less (under prior law, a two-year carryback was permitted) and extensions of the 50 percent bonus depreciation and the $250,000 capital write-off through 2009. The Worker, Homeownership, and Business Assistance Act of 2009 extended the five-year carryback to corporations generally for losses incurred in either 2008 or 2009 but not for both years (except for small businesses). In addition, several now-expired provisions in the Stimulus addressed certain business restructurings. The Stimulus also included a number of energy tax incentives, particularly in the areas of renewable energy and energy efficiency, totaling approximately $20 billion. Some of these will remain in effect until as late as 2013. In addition, several new state and local government bond enhancements assisted with an infrastructure rebuilding effort.
Finally, the Stimulus subjected all entities that have or will receive financial assistance under TARP to tighter executive compensation standards.
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In December 2009, Congress passed the first step in the two-part sweeping health care legislation, the “Patient Protection and Affordable Care Act.” The President signed this legislation on March 23, 2010, and on March 30, 2010, the President signed the second piece of legislation, the “Health Care and Education Reconciliation Act of 2010.” Together, these two bills contain a number of tax provisions, both insurance oriented and revenue raising, including (i) an increase of 0.9 percent in the employee portion of the Medicare payroll tax for annual wages or self-employment income in excess of applicable thresholds of $250,000 (joint filers or surviving spouse) and $200,000 (unmarried individual), beginning in 2013; (ii) a new Medicare tax of 3.8 percent of the lesser of net investment income and modified adjusted gross income in excess of the threshold amounts in (i) above, beginning 2013; (iii) the codification of the economic substance doctrine and penalties for transactions lacking economic substance, effective for transactions on or after March 31, 2010; (iv) an increase from 7.5 percent to 10 percent of the threshold for itemized deductions of unreimbursed medical expenses, beginning in 2013; (v) industry fees or excise taxes on manufacturers and importers of branded drugs, health insurance providers and medical devices, beginning in 2011, 2014, and 2013, respectively; (vi) individual and employer insurance mandates, taxes or penalties for failure to meet those mandates, and certain premium assistance tax credits, generally beginning in 2014; (vii) a 40 percent excise tax on high cost insurance policies, beginning in 2018; (viii) several provisions limiting tax benefits for flexible savings accounts, health savings accounts and certain similar accounts, generally beginning in 2011; and (ix) a 10 percent excise tax on indoor tanning services, beginning July 1, 2010.
The individual insurance mandate is the subject of several cases now working their way through the court system and expected to reach the Supreme Court.
Baker Hostetler has issued a series of detailed Alerts more fully describing the health care reform provisions, including tax provisions.
On March 18, 2010, the President signed the “Hiring Incentives to Restore Employment Act” (HIRE). HIRE provided certain tax incentives for employers to hire new employees, that is, relief to private employers from social security taxes on wages to certain new employees paid during the period after the date of enactment through December 31, 2010, and an employer’s tax credit of $1,000 (or, if less, 6.2 percent of the wages paid for a 52-week period) for each such employee retained for at least 52 weeks. In addition, HIRE extended the $250,000 capital write-off through 2010.
These incentives were funded by delaying the implementation of worldwide interest allocation until 2021 and by several provisions addressing tax compliance with respect to foreign financial accounts. These provisions require U.S. withholding agents to withhold 30 percent from U.S. source payments and proceeds from sales of U.S. securities paid to foreign financial institutions, unless the institution enters into an agreement with the IRS to collect and report certain information regarding account holders and to withhold from payments to customers who do not provide certain required information, beginning in 2013. The Treasury and the IRS have announced that regulations will be issued detailing the withholding, reporting and due diligence requirements under these statutes and have issued two Notices (2010-60 and 2011-34) describing the content of these future regulations in some detail. The legislation also includes increased taxpayer and third-party reporting, penalties for failure to report, doubling (to 40 percent) of accuracy-related penalties attributable to undisclosed foreign accounts (all beginning generally in 2011) and extensions of the statutes of limitations to six years for certain understatements attributable to reportable foreign financial assets (effective for any unfiled return or filed return for which the statute of limitations was open on March 18, 2010).
On August 10, 2010, Congress enacted the “Education Jobs and Medicaid Assistance Act” (Pub. L. No. 111-226). The Act provides over $26 billion in federal funding for local education and Medicaid, funded, in part, by several international tax provisions which are estimated to raise over $9.7 billion over the next 10 years. These complex international tax revenue raisers may be described briefly as follows.
Taxpayers generally are permitted to claim foreign tax credits with respect to foreign taxes paid on income earned in foreign countries. Certain planning techniques permitted a taxpayer to claim foreign tax credits while not taking into account the income on which those taxes were paid. The Act effectively suspends the foreign tax credits until the foreign income related to those tax credits is taxed in the U.S. The provision is generally effective for foreign income taxes paid or accrued in taxable years beginning after December 31, 2010, but is effective for foreign income taxes paid in taxable years beginning on or before December 31, 2010, for purposes of taking deemed-paid taxes into account in taxable years beginning after December 31, 2010. The Department of the Treasury and the IRS have issued detailed guidance addressing the treatment of pre-2011 taxes paid or accrued by certain foreign corporations (Notice 2010-92).
The Act disallows foreign tax credits to the extent attributable to differences in asset tax basis as a result of a covered-asset acquisition. In general, a covered-asset acquisition is an acquisition treated as an asset acquisition for U.S. tax purposes but as the acquisition of an entity interest for foreign tax purposes. The provision generally applies to covered-asset acquisitions after December 31, 2010, but will not apply to certain pending transactions.
Foreign tax credits generally are limited to the maximum amount of U.S. tax that could be imposed on foreign-source income (generally 35 percent for U.S. corporations). Certain income treated as derived from sources within the United States under U.S. domestic tax law may be treated as derived from sources outside the United States under a tax treaty. The Act segregates each such item of resourced income into a separate limitation basket. The provision is effective for taxable years beginning after the date of enactment.
This provision limits the foreign tax credits that a U.S. shareholder in a controlled foreign corporation (CFC) is deemed to pay in the case of an inclusion under Section 956. Section 956 deems a dividend to be paid directly by a foreign subsidiary to its ultimate U.S. parent in the case of certain U.S. investments by the subsidiary, including loans to its U.S. parent (“United States property”). This deemed dividend affirmatively “brings up” foreign tax credits directly from the subsidiary. If the Section 956 income inclusion is from a subsidiary located in a high-tax jurisdiction, the credits will reflect that high tax rate. However, an actual dividend to the U.S. parent from the same subsidiary will bring up foreign tax credits at a tax rate “blended” with the rate of intervening companies, which may be holding companies with low tax rates. The Act limits the amount of foreign tax credits that may be claimed with respect to a Section 956 income inclusion to the amount that would have been allowed had the dividend actually been paid through the chain of ownership. This provision is effective for acquisitions of United States property after December 31, 2010.
The earnings of foreign subsidiaries of U.S. entities with foreign parents normally are subject to a withholding tax at a rate of 30 percent (unless reduced by treaty) when they are remitted to the foreign parent through the U.S. entity. Prior to the Act, the foreign parent could avoid this withholding tax by entering into a Section 304 transaction, which would result in the earnings being treated as a deemed dividend from the foreign subsidiary directly to the foreign parent. The Act generally eliminates this benefit and is effective for acquisitions after the date of enactment.
For purposes of determining the foreign tax credit limitation, taxpayers must allocate and apportion interest deductions between U.S.- and foreign-source income, on the basis of the assets producing such income. In general, all members of an affiliated group of corporations are treated as a single corporation and Treasury Regulations generally exclude all foreign corporations from the affiliated group. However, a foreign corporation is treated as affiliated if (1) at least 80 percent of either the vote or value of the foreign corporation’s stock is owned, directly or indirectly, by members of an affiliated group and (2) more than 50 percent of the corporation’s gross income for that taxable year is effectively connected with the conduct of a U.S. trade or business (ECI). If 80 percent or more of the foreign corporation’s gross income is ECI, then all of the foreign corporation’s assets and interest expense are taken into account. If, instead, between 50 and 80 percent of its gross income is ECI, then only its assets generating ECI and a corresponding percentage of its interest expense are taken into account. The Act strengthens these rules by providing that, if more than 50 percent of the foreign corporation’s gross income is ECI and the 80 percent ownership requirement is met, then all of the foreign corporation’s assets and interest expense are taken into account in allocating interest. The provision is effective for taxable years beginning after the date of enactment.
Currently, interest paid by a resident individual and interest and dividends paid by a domestic corporation are subject to 30% withholding if paid to a foreign person. However, if at least 80 percent of a resident alien’s or domestic corporation’s gross income during a three-year period is foreign-source income attributable to the active conduct of a trade or business (the “80/20 test”), such dividends and interest are not subject to the normal gross basis withholding. The Act adopts the Administration’s 2011 Budget proposal to repeal these rules. However, the Act provides relief for certain existing companies meeting the 80/20 test. The provision is generally effective for taxable years beginning after December 31, 2010.
The HIRE Act (Pub. L. No. 111-147, sec. 513), contains a provision that effectively left open indefinitely the statute of limitations on certain international transactions if certain correct information returns were not furnished. Under the Act, if the taxpayer establishes reasonable cause, the limitations period is suspended only for the item or items related to the failure to disclose. This provision is generally effective as if it was included in the original HIRE Act (i.e., for returns filed after March 18, 2010).
On December 17, 2010, President Obama signed the “Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010.” A product of a compromise forged primarily by President Obama and a bipartisan group of Senators, the Act temporarily extends a wide variety of tax rate cuts and tax benefits for individuals and corporations and contains no revenue offsets.
The broad elements of the Act, discussed in more detail below, are as follows:
The Act extends for two years, through 2012, all the individual rates currently in force for 2010, including:
The Act extends for two years, through 2012, a long list of certain individual tax benefit provisions in force for 2010, the most significant of which are:
The Act extends for two years, through 2012, certain individual tax relief provisions enacted in 2009, including:
The Act increases the exemption amounts for the individual AMT for both 2010 and 2011. The exemption amounts for 2010 are (1) $72,450 in the case of married individuals filing a joint return and surviving spouses; (2) $47,450 in the case of other unmarried individuals; and (3) $36,225 in the case of married individuals filing separate returns. The exemption amounts for 2011 are (1) $74,450, in the case of married individuals filing a joint return and surviving spouses; (2) $48,450 in the case of other unmarried individuals; and (3) $37,225 in the case of married individuals filing separate returns.
In addition, the Act extends for two years, through 2011, the allowance of nonrefundable personal credits against AMT.
The estate tax and generation skipping transfers (GST) taxes which had expired at the end of 2009 (for one year) have been reinstated retroactively for all of 2010. The exclusion amounts for estate, gift and GST taxes have been raised to $5 million (but remains $1 million in 2010 for gift taxes only). For all three taxes the rate will be 35 percent (except for GST taxes which will be 0 percent in 2010 only). The estate of a decedent who died in 2010 may elect to apply the Internal Revenue Code as if these new provisions of the Act relating to the estate tax had not been enacted. This means no estate tax but only a limited step up in tax basis for inherited assets. In addition, a surviving spouse may utilize the deceased spouse’s unused estate tax exclusion amount. Absent further Congressional action, these relief provisions expire after December 31, 2012.
Under the law in force prior to the Act, including the extension provisions of the Small Business Jobs Act of 2010, Pub. L. No. 111-240 (Sept. 27, 2010) an additional first-year depreciation deduction is allowed equal to 50 percent of the adjusted basis of qualified property placed in service during 2008, 2009 and 2010. The Act extends and expands the additional first-year depreciation to equal 100 percent of the cost of qualified property placed in service after September 8, 2010 and before January 1, 2012, and 50 percent of the cost of qualified property placed in service in 2012.
The Act extends for two years—for 2010 and 2011—a wide variety of provisions, most of which had been repeatedly extended annually for several years. These provisions include:
At this point in his Administration, President Obama has issued three budgets, most recently the 2012 Budget, and the Department of the Treasury has released corresponding “General Explanations of the Administration’s Fiscal Year Revenue Proposals” (known informally as the “Greenbook”) for these years. The Greenbooks describe the Administration’s tax proposals in more detail, including international tax reform proposals aimed at curbing deferral. Although several of the Budget provisions are already reflected in enacted legislation, many of the proposals described in the 2012 Greenbook will require further development during the legislative process.
Consistent with the 2011 Budget, the 2012 Budget proposes to make permanent certain enhancements to the child care credit and the earned income credit, to make permanent the American opportunity tax credit and to provide for all employees not covered by a retirement plan to be automatically enrolled in a direct-deposit IRA outside of Social Security. The 2012 Budget also proposes to raise the top capital gains rate and dividends rate to 20 percent (up from 15 percent), beginning in 2013.
However, in addition to the changes above, the 2012 Budget proposes (as did the 2010 and 2011 Budgets) to limit the tax rate at which itemized deductions may reduce tax liability to 28 percent.
The 2012 Budget contains a handful of positive business tax proposals. The research and experimentation tax credit would be made permanent. Under the Small Business Jobs Act, taxpayers other than corporations may exclude 100 percent of the gain from the sale of qualified small business stock acquired after September 27, 2010, and before January 1, 2011, and held for at least five years, provided various requirements are met. The Tax Relief, Unemployment Insurance Reauthorization, and Job Creation Act of 2010 extends this 100-percent exclusion to eligible stock acquired before January 1, 2012. The 2012 Budget proposes to make permanent this 100-percent exclusion.
The 2012 Greenbook modifies the 2011 proposal for a “Financial Crisis Responsibility Fee” that would apply to U.S. banks, thrifts, brokers and securities dealers with consolidated assets of at least $50 billion. The fee proposal for 2012 is approximately 7.5 basis points on “covered liabilities.” A discount would apply to more stable sources of funding, including long-term liabilities and the fee would be deductible in computing U.S. corporate income tax. Under the 2011 Budget, the proposed fee was approximately 15 basis points. Both the 2011 and 2012 Budgets provide for several tax increases that appear to be aimed at business, including the reinstatement of Superfund taxes, the taxation of carried interest as ordinary income (although the 2012 Budget limits the proposal to investment partnerships) and the repeal of LIFO inventory accounting.
The 2012 Greenbook also describes in more detail the international tax reform proposals, some of which appeared in the 2010 or 2011 Greenbook. The 2012 Greenbook continues the proposal in the 2011 Greenbook to defer interest expense deductions that are allocable to foreign income that is deferred until the allocable income is repatriated. Under another proposal in both the 2011 and 2012 Budgets, deemed paid foreign tax credits would be determined on an aggregate basis for all foreign subsidiaries, thus limiting taxpayers’ flexibility to credit taxes on high-taxed income while keeping low-taxed income offshore. Under another international tax proposal in both Budgets, if a U.S. person transfers an intangible from the United States to a related controlled foreign corporation that is subject to a low foreign effective tax rate, an amount equal to the excess intangible income would be currently taxed to the U.S. person as subpart F income in a separate foreign tax credit limitation basket. The amount of currently includible excess intangible income would be equal to the excess of gross income from transactions connected with or benefitting from such covered intangible over the costs (excluding interest and taxes) properly allocated and apportioned to this income, increased by a percentage mark-up. The 2012 Budget also adopts, with modifications, a 2011 Budget proposal under which a U.S. insurance company would be denied a deduction for certain nontaxed reinsurance premiums paid to affiliated foreign reinsurance companies, to the extent such premiums are deemed excessive. Under the 2012 Budget, the deduction is denied to the extent that the foreign reinsurer is not subject to U.S. income tax on the premiums. Other international proposals in both the 2011 and 2012 Budgets (i) “clarify” that intangible property for transfer pricing purposes includes workforce in place, goodwill and going concern value; (ii) tighten the limits on interest deductions by certain expatriated entities; (iii) repeal the “boot-within-gain” limitation of current law in the case of certain foreign reorganizations; and (vi) allow foreign tax credits of certain “dual-capacity” taxpayers only for the portion of a foreign levy that the taxpayer would pay if it were not a dual capacity taxpayer. All of these international proposals are proposed to be effective January 1, 2012.
The President’s 2012 Budget also continues the 2010 and 2011 proposals to eliminate several “oil and gas company preferences,” including the repeal of expensing of intangible drilling costs, the repeal of the domestic manufacturing tax deduction for oil and natural gas companies, the increase in the amortization period for geological and geophysical costs to seven years and the repeal of percentage depletion for oil and natural gas. The 2012 Budget also continues the 2011 Budget proposals to repeal certain “coal preferences,” including expensing of exploration and development costs, percentage depletion for hard mineral fossil fuels, capital gains treatment of certain royalties and the domestic manufacturing tax deduction for coal and other hard mineral fossil fuels. Many of these proposals are now finding significant support in both the House and the Senate.
The 2010 Greenbook also included a number of proposals to “reduce the tax gap and make reforms.” The 2012 Greenbook continues these proposals, including several proposals: to increase information reporting and related penalties, to improve compliance by businesses, to strengthen the IRS’s hand in administering taxes, to expand certain miscellaneous penalties and certain substantive reforms “to close tax loopholes.” These loophole-closing proposals include (i) the accrual of interest on forward contracts to issue corporate stock; (ii) ordinary income treatment for dealers in securities, commodities, commodities derivatives and equity options; (iii) several life insurance proposals; (iv) the denial of deductions for punitive damages; (v) the repeal of the lower-of-cost-or-market inventory accounting method; and (vi) several estate and gift tax proposals. Finally, the 2012 Greenbook proposes to enhance the ability of the IRS to collect taxes owed by Federal contractors and Medicare providers.
There seems to be growing support for reducing the corporate tax rate, perhaps in conjunction with overall corporate tax reform. At the time that this Alert went to press, it appeared that the President might propose a corporate tax reform plan with a top corporate rate as low as 26 percent. Unfortunately, there also is growing support for paying for any rate reduction by eliminating various deductions. Thus, to the extent rate reductions occur at all, there likely will be winners and losers. The most obvious losers may be U.S. companies that take advantage of the manufacturing deduction, as any general rate reduction is likely to result in the elimination of that benefit. If such a plan moves forward, there are likely to be many other groups of winners and losers. Republicans are adamant that there be no net revenue increases, but seem to be prepared to repeal certain corporate tax benefits provided all savings are used for rate reduction. Corporate tax directors need to inform their boards of the potential impact on corporate book earnings of these and other expected developments. Adverse effects of certain proposals may be lessened or eliminated with advance planning.
The Obama Administration understands the value to America of free trade and has successfully negotiated revisions in all three pending free trade agreements with South Korea, Panama and Colombia to satisfy demands of various domestic constituencies. Nonetheless, some trade unions still object to the Colombia Agreement. The House of Representatives insists on bringing all three agreements to a vote simultaneously, while the Administration prefers a serial approach beginning with Korea. Negotiations to break this legislative impasse continue while other countries, particularly the European Union, are entering bilateral agreements with these trade partners. The hostile climate toward free trade is receding with recognition that the United States needs to export more to balance its books, but these free trade agreements remain hostage now mostly to partisan politics.
The recession seems to have produced a reordering of global supply chains and, consequently, of international trade disputes. Whereas disputes continue regularly over intellectual property, with petitions filed to halt allegedly infringing goods from entering the United States, traditional antidumping and countervailing duty cases seem limited mostly to Chinese products and to some steel products from other countries. Either U.S. industries generally cannot show that their problems arise from unfairly traded imports, or they have little appetite to challenge imports when they depend more on imports for inputs in their own production. Greater interdependence in supply chains seems to mean fewer overt disputes. Whatever the explanation, the anticipated volume of trade remedy petitions, typical of periods of slow recovery, generally has not occurred this time.
Governments, especially China and the United States, seem more interested in scoring points of principle at the WTO than enabling fair trade and a free flow of goods. Consequently, there have been more disputes at the WTO, where remedies are prospective only and resolution usually takes much longer than in domestic courts. Still, there have been high profile disputes. China, for example, had found the Big Three American automobile manufacturers to be dumping subsidized saloon cars. The ramifications of this determination, reached in March 2011, are not yet known. Many observers of international trade believe that the greatest obstacle to the next breakthrough—opening up developing countries—is the apparent inability to complete the Doha Round of multilateral trade talks. President Obama called for the completion of the Round when in Asia during the autumn 2010, but neither the United States nor the European Union seems quite ready to surrender agricultural subsidies, and no agreement is likely with Brazil, China or India until they do.
Japan, China and the United States are alleging subsidies against each other in “green” technologies. These disputes, all at the WTO, could adversely impact the development of green technologies, such as wind power and automobile batteries for electric cars, and retard the progress for which the Administration most hopes: a recovery led by technology in green and environmentally progressive innovation.
A year ago it seemed that allegations over Chinese currency manipulation would occupy the center stage of trade policy. While it remains a preoccupation of Congress, the Administration has deflected the complaint and focused its energies elsewhere. Its trade policy remains ill-defined but some contours have emerged: it has pronounced in favor of the three pending free trade agreements now that they have been renegotiated, has committed resources (but not too many) to promoting exports and continues to favor innovation in green technologies, but without the cooperation of Congress needed to fund such innovation effectively.
Despite the extraordinary subsidies occasioned by recovery policies affecting our exports that might have made them a serious target of trade protectionism among our trading partners, only the Chinese have attacked them aggressively. It may be that most of our partners appreciate that the forces that led to American subsidization also fueled their own and that a trade war over mutual sins would benefit no one.
With the meltdown of the financial sector in 2008, the Madoff scandal (where a Baker Hostetler attorney serves as Trustee and the firm serves as Counsel to the Trustee), and the passage of Dodd-Frank, most attention is on expected regulatory initiatives. Massive overhaul of the financial regulatory system is expected to continue during the next several years.
The Employee Free Choice Act (EFCA) is no longer a serious legislative threat. EFCA, as originally proposed, would have amended the National Labor Relations Act (NLRA) by substituting card check recognition for the secret ballot election as the means for employees to choose union representation. EFCA as originally proposed also would have required binding arbitration of first contracts 120 days after a union is certified as the employees’ representative. That means that an arbitrator (not the employer) would have had the power to set employees’ wages and benefits for the first two years of the bargaining relationship. Finally, EFCA would have imposed stronger penalties for employer violations of the NLRA during organizing drives or the negotiation of first time labor contracts. President Obama had promised to sign any such legislation into law.
Baker & Hostetler LLP publications are intended to inform our clients and other friends of the Firm about current legal developments of general interest. They should not be construed as legal advice, and readers should not act upon the information contained in these publications without professional counsel. The hiring of a lawyer is an important decision that should not be based solely upon advertisements. Before you decide, ask us to send you written information about our qualifications and experience. © 2011 Baker & Hostetler LLP
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Tax Jeffrey H. Paravano jparavano@bakerlaw.com 202.861.1770Paul M. Schmidt pschmidt@bakerlaw.com202.861.1760 Jeffry J. Erney jerney@bakerlaw.com216.861.1770Allen J. Littman alittman@bakerlaw.com 202.861.1686Stuart J. Bassinsbassin@bakerlaw.com202.861.1736John R. Lehrer II jlehrer@bakerlaw.com202.861.1620
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