Congress and a Tax Overhaul: Lots of Talk, Little Action

Donald Trump's tax return controversy could prompt action — or not

Republican presidential nominee Donald Trump gestures during the Presidential Debate at Hofstra University on September 26, 2016 in Hempstead, New York. (Win McNamee/Getty Images)
Republican presidential nominee Donald Trump gestures during the Presidential Debate at Hofstra University on September 26, 2016 in Hempstead, New York. (Win McNamee/Getty Images)
Posted October 18, 2016 at 5:00am

Is 2017 the year when a tax overhaul finally happens?

Don’t bet on it.

That’s despite the revelation that Republican presidential nominee Donald Trump could have avoided paying federal income taxes for almost two decades.

And despite Sen. Bernie Sanders’ decision to embrace a tax overhaul as one of his signature issues during his insurgent Democratic primary campaign.

And despite the damage done to Mitt Romney’s presidential campaign in 2012 when he released tax returns — something that Trump, so far, has refused to do — showing he’d paid 14 percent in taxes on his eight-figure income.

Congress has talked about a tax overhaul for almost three decades. Doing something about it, not so much.

Even though both parties have vowed to tackle the tax code in the next Congress, tax experts predict this time around will be no different. Lawmakers, they say, are unlikely to tackle divisive issues and risk alienating some of their biggest benefactors. 

If and when they do, they could face daunting opposition. The real estate industry, among the country’s most tax-privileged industries, not only produced Trump but is also one of the biggest campaign contributors on both sides of the aisle. It’s also been known to bring out the big guns whenever Congress starts talking about changes to the tax code, as have business tycoons. 

Far from simply being a businessman who profited from an exceptional understanding of the code, Trump personally lobbied Congress for tax breaks for real estate developers in 1991.

Not surprisingly, there’s a wide divide between Republicans and Democrats on key elements of a tax overhaul.

The House Republicans’ 2017 tax plan, in part, aims to keep taxes low for corporations as a way to spur economic growth. Critics say it would be a boon for the wealthy and corporations.

Speaker Paul D. Ryan earlier this month vowed to force through his party’s agenda under a Trump presidency, and brushed aside questions about the nominee’s leaked returns.

It appeared Trump had taken common deductions, he said. “The numbers are big because he’s a multibillionaire.”

Democrats point fingers across the aisle.

“I’ve said so publicly for 30 years: The tax system is broken,” outgoing Senate Minority Leader Harry Reid said during a conference call from Nevada on Oct. 6. “The Republicans won’t let us touch that because they love it the way it is.”

Critics don’t let either party off the hook.

The response from Capitol Hill was a “huge disappointment,” said Frank Clemente, executive director of Americans for Tax Fairness, a liberal advocacy group.

“There aren’t enough members of Congress championing the interest of average taxpayers here,” he said. “Too many of them are representing the wealthy and big corporations in their aspirations about the tax system. It’s very challenging. Money talks on the Hill.”

A muted response

Among the most vocal lawmakers calling for revisions that target “loopholes” exposed by Trump’s returns is Sanders, whose breakaway success in the Democratic primaries might give him new cachet to attack even the most thorny of issues in the next Congress.

Sanders announced that he would introduce a bill next year aimed at parts of the tax code that some experts believe Trump was able to exploit.

“You’ve got some middle-class people working longer hours for lower wages — they pay their taxes, they support their schools, they support their infrastructure, they support the military,” Sanders said on CNN recently. “But the billionaires? No, they don’t have to do that, because they have their friends on Capitol Hill.”

How much support he’ll find back in the Senate remains to be seen. But he isn’t alone in calling for action.

Oregon’s Ron Wyden, the ranking Democrat on the Senate Finance Committee, is also pushing for a tax overhaul. That includes more transparency in presidential races. 

“This is just about the best opportunity to fix this broken, dysfunctional tax code that our country’s had in years and years,” he said.

Wyden and other Senate Democrats recently introduced a bill that would require tax records from all major party nominees.

He said Trump’s leaked returns underscore the argument that the tax code is “a tale of two systems,” one for ordinary taxpayers and one for moguls like Trump.

Reid takes a similar position. He said that whatever happens with the tax code, that should not overshadow the fact that Trump hasn’t released any of his tax returns.

“I don’t know why Donald Trump thinks he’s above the requirement of being candid with the American people,” Reid said. 

Across the aisle, Utah’s Orrin G. Hatch, chairman of the Senate Finance Committee, said he shared Wyden’s desire for a tax overhaul next year. 

Rewriting the tax code is a core part of the House Republicans’ “Better Way” agenda. That plan would reduce the corporate tax rate to 20 percent from 35 percent. It would also slightly increase after-tax income for individual filers, according to the nonpartisan research organization, The Tax Foundation.

Another provision, which Trump reportedly doesn’t like, would end interest deductions on new business loans. That would hit commercial real estate investors particularly hard.

A familiar story

It’s no secret in Washington that real estate professionals get huge tax breaks, and that Congress is loathe to address them.

Trump himself was quoted in Vanity Fair, saying, “One of the big assets of real estate, you are allowed large deductions.”

Dan Rostenkowski, the late Democratic chairman of the House Ways and Means Committee, once famously got so fed up with the shameless perks that he threatened to make the real estate sector tax exempt — which, ironically, would have raised taxes for real estate investors because they would no longer get unlimited write-offs.

A later committee chairman, Michigan Republican Dave Camp, released a tax proposal that would have eliminated several lucrative tax breaks for the industry, but the gesture — one of Camp’s last acts before he retired in 2015 — was understood to be mostly symbolic.

And a draft proposal from former Senate Finance Committee Chairman Max Baucus that would have done the same has been languishing since the Montana Democrat introduced it in 2013, shortly before resigning to become ambassador to China.

The same is true of attempts to limit special tax breaks for the wealthy.

After the revelation of Romney’s 14 percent effective tax rate hurt his prospects in the 2012 election, Democrats in Congress tried unsuccessfully to target one tax benefit that advantaged Romney, the lower tax rate on so-called carried interest. That allows a lower tax rate on commissions earned for managing investors’ portfolios.

Both Trump and Clinton’s tax plans propose closing the carried interest loophole — although Trump falsely claimed during the second presidential debate that Clinton’s would not.

Money talks

In 1991, five years after Ronald Reagan had signed a landmark tax overhaul bill that had cracked down on real estate tax shelters, Trump testified before a House Budget Committee to have portions repealed. The bill was “an absolute catastrophe” that had plunged the real estate industry into an “absolute depression,” he said

Two years later, amid aggressive lobbying from the industry, Congress adopted a new set of exemptions for real estate professionals. President Bill Clinton signed the 1993 effort into law.

Real estate development firms on average pay only about 1 percent of their income in taxes, compared to an 11 percent average for every other industry, according to data from Aswath Damodaran, a New York University professor of finance, that has been cited numerous times since the leak of Trump’s tax returns.

Real estate interests have contributed more than $1.1 billion to campaigns, parties and outside groups since 1990, including $143 million in this election so far, according to the Center for Responsive Politics.

Real estate professionals — defined by the IRS as those who work at least 750 hours a year and more than half of their working time on a real estate business — can also depreciate their properties over a number of years, even if the property in question goes up in value during that time. Another obscure provision, called “like-kind exchanges,” allows real estate developers to keep the IRS from recognizing gains when they sell their properties. Clinton’s tax proposal would limit such tax breaks.

Trump and other wealthy filers are permitted to lower their tax rates because they can hold their wealth inside networks of partnerships, limited liability companies and S corporations.

The provision that may have allowed Trump to not pay federal income taxes is the “net operating loss carryover.” That commonly used accounting tool allows businesses to offset losses with future taxable income. The most commonly discussed revision is to limit how many years that deduction is allowed.

GOP Rep. Lynn Westmoreland of Georgia, one of nine former real estate developers in Congress, said anyone in his industry is likely to have taken similar deductions to Trump. He said he had declared net operating losses from a housing development that “went south.”

“I don’t know of anybody who doesn’t claim every deduction they can on their taxes,” he said. “I do.”

Clemente, of Americans for Tax Fairness, said he would be surprised if any of those issues is raised should Congress tackle a tax overhaul in 2017. Instead, he said, members from both parties are likely to be more focused on international tax shelters, a revision viewed favorably by both sides but unlikely to have any impact on wealthy individual filers like Trump.

“Even then, there is a stretch to see how they would get to ‘yes’ on a corporate tax reform bill,” he said. “They may just deal with the international aspects of corporate tax reform. Trump wouldn’t be touched at all.”

Alan K. Ota contributed to this report.