Treasury Department recommendations for tax regulatory changes released Friday are almost entirely copied from a U.S. Chamber of Commerce memo on the same subject.
The five-page notice, released by the Internal Revenue Service, complies with Donald Trump’s Executive Order 13789, issued April 21. This order mandated a review of all tax regulations finalized since 2016. The interim report was to identify those regulations that imposed an “undue financial burden” on taxpayers, added “undue complexity” to the tax code, or exceeded the IRS’ regulatory authority.
The interim report was due June 20; Treasury did not release the notice publicly until 17 days later. Delays like this have become a typical feature of federal agencies’ compliance with Trump executive orders.
The tardiness of the Treasury report looks even worse considering one additional factor: in May, the Chamber of Commerce released their own report, highlighting tax regulations they believed created significant burdens and complexities. Treasury treated this report the way a kid who didn’t prepare for a test in school would treat the smart kid’s answer sheet the next desk over.
The kid they cribbed from is more than just the class nerd. The Chamber of Commerce fronts as an organization pushing the broader interests of American business. But in reality, it is a gun for hire, advocating on behalf of individual companies who make largely secret contributions to the organization. It’s unlikely any of the Chamber’s recommendations wound up on that list free of charge.
Of the eight tax regulations cited in the IRS notice, seven of them were identified in the Chamber of Commerce report, a fact first noted by Richard Rubin of the Wall Street Journal. Moreover, they are not the kinds of tax changes from which the average Trump voter would benefit. Rescinding these regulations would make it easier for cities to issue tax-exempt municipal bonds; open a loophole allowing tax-free transfers of property, including intellectual property, to foreign corporations (a favorite way to dodge U.S. taxes); allow partnerships to move around debt instruments; give foreign exchange traders a better chance to take losses from currency sales; let large estates discount assets to lower their estate and gift tax burden; and stop the IRS from retaining outside experts to participate in audits. This last move would be a major boon to taxpayers, such as corporations, who file inordinately complex tax returns. The IRS often contracts with experts to audit such filings, as budget cuts have rendered the task difficult to do internally.
In short, the beneficiaries are all business owners, financiers, and wealthy individuals.
The biggest change would be to a rule aimed at preventing corporate tax avoidance through “inversions,” where a U.S. company merges with an overseas competitor and shifts its headquarters’ address to the foreign country, lowering its tax rate in the process. Under section 385 of the tax code, the rule tries to stop “earnings stripping,” where the company makes internal loans to load up U.S. operations with debt. This gives the impression of corporate losses at the indebted U.S. operations, while the assets in the foreign subsidiary are subject only to the lower tax rate of the foreign country.
The Obama-era earnings stripping rule would have reduced the value of any tax benefits derived from inter-company loans. Rescinding the rule was a high priority of the Chamber of Commerce, who argued that it disrupted “normal business practices.”
The only tax regulation the IRS included in its report that the Chamber did not identify concerned corporate transfers of property into tax-sheltered real estate investment trusts (REITs), another tax avoidance tactic used by businesses and particularly real estate developers. Famously, the president has a real estate business.
Basing tax and regulatory policy on industry wishes is nothing new for the Trump administration. Treasury’s first report recommending changes to the financial regulatory system cited 244 different banking industry groups, and included entire sections cribbed from trade groups and industry-friendly think tanks.
Caroline Harris, vice president of tax policy for the Chamber of Commerce, told the Wall Street Journal that the rules Treasury highlighted “are some of the most burdensome to the business community, and we applaud Treasury’s recognition for the need for action on them.”
These tax regulations can all be rescinded through the regulatory process, without legislation from Congress. Two of the regulations, the estate tax and tax-exempt municipal bonds changes, haven’t taken effect yet, so they would be simpler to withdraw. The others would need to go through a lengthier notice-and-comment rulemaking process that could take a year or more.
“Treasury intends to propose reforms — potentially ranging from streamlining problematic rule provisions to full repeal,” according to the IRS notice. Those proposals are due in a report to the president by September 18. The agency is requesting public comments on whether to rescind or modify these rules, due by August 7. Commenters can email Notice.Comments@irscounsel.treas.gov, with “Notice 2017-38” in the subject line.
You can check the Trump administration’s record on complying with executive orders and memoranda at our interactive tracker: