Senate, House Tax Chairs Announce Bipartisan Tax Deal Framework

Senate Finance Committee Chair Ron Wyden, D-Ore., and House Ways and Means Committee Chair Jason Smith, R-Mo. on January 16 unveiled a framework for a $78 billion bipartisan tax package that would expand the child tax credit in exchange for business-friendly provisions, including restoring and extending 100% bonus depreciation and addressing scheduled changes under the Tax Cuts and Jobs Act (TCJA).  The package was approved by the Ways and Means Committee on January 19 on a 40-3 vote.  This legislation is independent from the continuing resolution President Biden signed on January 19 to keep the government funded and avoid a partial shutdown.

Although the package does have bipartisan support in both houses, Representative Richard E. Neal (D-Ma.), the senior Democrat on the Ways and Means Committee, and Senator Michael D. Crapo (R-Id.), the senior Republican on the Finance Committee have not endorsed the package, and the legislative path forward remains unclear.

In a statement, Wyden called for swift legislative action on the bill, stating “My goal remains to get this passed in time for families and businesses to benefit in this upcoming tax filing season, and I’m going to pull out all the stops to get that done.” The IRS has announced that January 29 is the official start date of the 2024 tax season.

Business Tax Provisions

The nine-page Tax Relief for American Families and Workers Act of 2024 balances the expansion of the child tax credit and other family-friendly tax provisions with a number of tax measures favorable to businesses.

Deduction for Research and Experimental Expenditures. Under current law, research or experimental (R&E) costs paid or incurred in tax years beginning after December 31, 2021, must be deducted over a five-year period (or a 15-year period if the research is conducted outside the U.S.) The proposed provision would delay the date when taxpayers must begin deducting their domestic research or experimental costs over a five-year period until taxable years beginning after December 31, 2025. Thus, taxpayers would be allowed to deduct currently domestic – but not foreign -- research or experimental costs that are paid or incurred in tax years beginning after December 31, 2021, and before January 1, 2026.

Business Interest Deduction Limitation. The TCJA enacted a limitation on the deduction for business interest expense, generally limiting the deduction to 30% of adjusted taxable income (ATI). For tax years beginning before January 1, 2022, the computation of ATI is determined without regard to any deduction allowable for depreciation, amortization, or depletion (i.e., earnings before interest, taxes, depreciation, and amortization (EBITDA)). For tax years beginning after December 31, 2021, ATI is computed without adding back depreciation, amortization or depletion (EBIT). Under the proposal, for taxable years beginning after December 31, 2023, and if elected for taxable years beginning after December 31, 2021, ATI would be computed by adding back deductions allowable for depreciation, amortization, or depletion (i.e., EBITDA). 

Bonus Depreciation. Under the TCJA, taxpayers were allowed to expense the full cost of qualified property immediately, rather than depreciating it over its useful life. This “bonus depreciation” was in place through 2022, but beginning in 2023, it was scheduled to be reduced by 20% each year and phased out completely in 2027. The proposal would extend 100% bonus depreciation for qualified property placed in service after December 31, 2022, and before January 1, 2026.

Taiwan

The framework includes language that would create a new Internal Revenue Code section to provide substantial benefits to Taiwan residents similar to those that are provided under the U.S. Model Tax Treaty. The provisions fall into four primary categories: 

• Reduction of withholding taxes.
• Application of permanent establishment rules.
• Treatment of employment income.
• Determination of qualified residents of Taiwan, including rules for dual residents.

The new tax code section would not enter into effect until Taiwan provides the same tax benefits to U.S. persons with income subject to tax in Taiwan, similar to the reciprocal operation of a tax treaty.

Moreover, the proposal also includes language that would authorize the president to negotiate and enter into a U.S.- Taiwan tax agreement that includes provisions generally conforming with those customarily contained in U.S. tax treaties. Absent this specific language – that would be codified as part of the Internal Revenue Code – the U.S. would be unable to enter into a bilateral tax treaty with Taiwan due to Taiwan’s “unique status,” according to the framework.

The bill’s provisions on Taiwan tax relief mirror a bill that was approved unanimously by the House Ways and Means committee on November 30, 2023, and that also has bipartisan support in the Senate. 

Employee Retention Credit

The proposal addresses IRS concerns that the majority of ERC claims currently being filed are fraudulent by closing the program on January 31, 2024. Under current law, employers can file ERC claims for 2020 until April 15, 2024, and for 2021 until April 15, 2025. 

Wyden’s statement asserted that this change would result in $70 billion in taxpayer savings.  This is an essential element to finance the other provisions of the bill, so the January 31, 2024, deadline appears to be firm even though it allows little time for legitimate ERC claims to be prepared and filed.   

Even if this bill is not enacted, there is a significant amount of pressure to address the ERC program that is fraught with bad players.  Given the bipartisan support for ending the program early, it would be prudent for employers that have not yet filed legitimate ERC claims to consider filing before the potential January 31, 2024, program closing.  

The proposal would also increase the penalty for aiding and abetting the understatement of a tax liability by an employee retention credit (ERC) promoter to the greater of $200,000 ($10,000 in the case of a natural person) or 75% of the promoter’s gross income derived from providing aid, assistance, or advice regarding a return or claim for ERC refund or a document relating to the return or claim.

The proposal also extends the statute of limitations period for ERC claims – generally five years from the date of the claim -- to six years and extends the period for taxpayers to claim valid deductions for wages attributable to invalid ERC claims that are corrected after the normal period of limitations.

Outlook

The overwhelming bipartisan support for the proposal in the Ways and Means Committee signals potential enactment of the legislation.  Nonetheless, taxpayers should proceed cautiously when planning, as passage and timing remain uncertain.  According to press reports, the bill could be sent to the House floor the week of January 29.  

Should the legislation become law, it would likely be after the start of the 2024 tax filing season on January 29. The IRS will face challenges implementing any changes that impact the 2024 filing season.