How Late-in-Life Dads Like Donald Trump Are Eligible for a Social Security Bonus


This article, coauthored with Allan Sloan, first appeared in ProPublica and The Washington Post.

Would you believe that President Donald Trump is eligible for an extra Social Security benefit of around $15,000 a year because of his 11-year-old son, Barron Trump? Well, you should believe it, because it’s true.

How can this be? Because under Social Security’s rules, anyone like Trump who is old enough to get retirement benefits and still has a child under 18 can get this supplement — without having paid an extra dime in Social Security taxes for it.

The White House declined to tell us whether Trump is taking Social Security benefits, which by our estimate would range from about $47,100 a year (including the Barron bucks) if he began taking them at age 66, to $58,300 if he began at 70, the age at which benefits reach their maximum.

Of course, if Trump, 71, had released his income tax returns the way his predecessors since Richard Nixon did, we would know if he’s taking Social Security and how much he’s getting. There’s no reason, however, to think that he isn’t taking the benefits to which he’s entitled.

Meanwhile, Trump’s new budget proposes to reduce items like food stamps and housing vouchers for low-income people. It doesn’t ask either the rich or the middle class to make sacrifices on the tax or spending side. And it doesn’t touch the extra Social Security benefit for which Trump and about 680,000 other people are eligible.

The average Social Security retiree receives about $16,900 in annual benefits. Does it strike you as bizarre that someone in Trump’s position gets a bonus benefit nearly equal to that?

Does it seem unfair that by contrast to Trump, most male workers — and for biological reasons, an even greater portion of female workers — can’t get child benefits because their kids are at least 18 and out of high school when the workers begin drawing Social Security retirement benefits in their 60s and 70s?

Trump is eligible for the Late-in-Life-Baby Bonus, as we’ve named it, because the people who designed Social Security decided in 1939, about five years into the program, that dependents and spouses needed extra support. They didn’t think much (if at all) about future expansion in the number of retirees, primarily male, who would have young kids.

The Late-in-Life-Baby Bonus goes to about 1.1 percent of Social Security retirees and costs about $5.5 billion a year. That’s a mere speck in Social Security’s $960 billion annual outlay.

Yet the Late-in-Life-Baby Bonus is a dramatic — and symbolic — example of hidden problems that plague Social Security, problems that few non-wonks recognize and that reform proposals have largely ignored.

Those problems are why the two of us — Allan Sloan, a journalist who has written about Social Security for years; and C. Eugene Steuerle, an economist who has written extensively about Social Security, co-founded the non-partisan Urban-Brookings Tax Policy Center and is the author of “Dead Men Ruling: How to Restore Fiscal Freedom and Rescue Our Future” — combined forces to write this article.

We want to show you how we can help Social Security start heading in the right direction before its trust fund is tapped out, at which point a crisis atmosphere will prevail and rational conversation will disappear.

Calling for Social Security fixes isn’t new, of course, but the calls usually focus primarily on fixing the increasing gap between the taxes Social Security collects and the benefits it pays.

For us, however, the Late-in-Life-Baby Bonus is an example of why reform should not only restore fiscal balance but should also make the system more equitable and efficient, more geared to modern needs and conditions, and more attuned to how providing ever-more years of benefits to future retirees puts at risk government programs that help them and their children during their working years.

If all that mattered were numbers, we could easily provide better protections against poverty with no loss in benefits for today’s retirees, while providing higher average benefits for future retirees. But that works only if the political will is there to update Social Security’s operations and benefit structure. After all, a system designed in the 1930s isn’t necessarily what we’ll need in the 2030s.

And make no mistake about how important Social Security is. Millions of retirees depend heavily on it. According to a recent Census working paper, about half of Social Security retirees receive at least half their income from Social Security — and about 18 percent get at least 90 percent of their income from it. Add in Medicare benefits, and retirees’ reliance on programs funded by the Social Security tax are even higher.

Given the virtual elimination of pension benefits for new private-sector employees and the increasing erosion in pensions for new public-sector employees, Social Security will likely be needed even more in the future than it is today.

Simply throwing more money at Social Security isn’t the way to solve its imbalances, much less deal with the Late-in-Life-Baby Bonus and some of the other bizarre things we’ll show you.

Money-tossing would just continue the pattern of recent decades that provides an ever increasing proportion of national income and government revenue to us when we’re old (largely through Social Security and Medicare), and an ever smaller proportion when we’re younger (anything from educational assistance to transportation spending). This shortchanges the workers of today and tomorrow who will be called upon to fork over taxes to cover the costs of Social Security and other government programs for their elders.

We began with the Late-in-Life-Baby Bonus because giving people like Trump — a wealthy man with a young child from a third marriage — an extra benefit unavailable to 99 percent of retirees is a dramatic example of how problems embedded in Social Security cause inequities and problems that few people other than Social Security experts know about.

Think that we’re overreacting to a minor quirk? We aren’t. Here are some additional aspects of Social Security that we think violate standards of equal justice and common sense:

There’s the Single Parent Shortchange, whereby many single parents — largely mothers with below-average earnings — pay Social Security taxes to cover spousal and survivor benefits for other people even though the solo parents can’t receive them. Sure, many people contribute toward benefits they will never see, especially if they die before retirement age. But the Single Shortchange strikes us as horribly unfair. Single parents are among the lowest income payers of Social Security taxes. Why should they subsidize other folks’ never-working spouses in a way that gives the biggest benefits to the best-off people?

Then there’s the Agatha Christie Benefit: Some divorced people get a bonus from Social Security only if their former spouse dies. And the Serial Spouse Bonus: If someone has had, say, three spouses, each might get the same full spousal and survivor benefits available to the one lifetime spouse of another worker — provided that each marriage lasted at least 10 years. If a marriage lasts nine years and 364 days, the spouse gets zippo.

The Equal Earner Penalty means that a couple with two people each earning $40,000 gets about $100,000 less in lifetime benefits than a couple with one spouse earning $80,000 and the other earning nothing. This happens even though both couples and their employers pay identical Social Security taxes.

Many if not most of these inequities would be illegal in private retirement plans.

Fixing the Late-in-Life-Baby Bonus and the other inequities we mentioned (as well as plenty that we omitted) is more about remedying injustice than cutting costs; giving some people more benefits and others less would pretty much offset each other.

The system needs to be overhauled not simply to become more fair by giving less to the Trumps of the world and more to the less fortunate among us, but because Social Security, created in the 1930s, was largely constructed around a world in which married women were expected to stay at home. People also had shorter lifespans then and retired later, so that today retirees receive benefits for 12 more years on average than retirees in the system’s earlier days.

Back in 1965, there were about four workers for every person drawing benefits. Currently the ratio is in the low threes. Now, the decline in birth rates is hitting with a bang as baby boomers retire en masse, with the ratio expected to fall to about 2.2 in 2035. Each baby boomer retirement leads to an increase in takers and a decrease in makers.

Not dealing with this decline in workers-to-beneficiaries — a good chunk of which is caused by Social Security treating people as young as 62 as “old” — has broad implications for the revenues available for all government services, not just Social Security, as well as for the growth rate of our economy.

Even as fewer workers support more retirees, the average value of Social Security retirement benefits continues to rise. Look at the increasing “present value” of Social Security benefits for a two-income 65-year-old couple earning the average wage each year and expecting to live for an average lifespan.

In 1960, such a couple needed to have on hand $269,000 (in 2015 dollars) in an interest-bearing account to cover the cost of their lifetime benefits. Today, it’s about $625,000. In 2030, it will be about $731,000. And in 2055, when a Millennial age 30 this year turns 67, the full retirement age under current law, the present value of scheduled benefits hits seven digits: $1,029,000. Include Medicare, and benefits are about $1 million for today’s couple, rising to $2 million for the millennial couple.

These benefit-value increases are caused by a combination of longer lives for retirees and Social Security formulas that increase benefits as wages rise.

These numbers matter because Social Security isn’t like an Individual Retirement Account or a pension plan that sets money aside for you today for use when you retire. It’s mainly an intergenerational transfer system: Today’s workers pay Social Security taxes to cover their parents, who previously paid to cover their parents, who paid to cover their parents. That’s the way the system has worked since its founding in 1935. Social Security taxes paid by current workers and their employers get sent to beneficiaries, not stashed somewhere awaiting current workers reaching retirement age.

The system does have a trust fund that in the early 1980s was about to run out of money. A crisis loomed. As a result, after a report by the Greenspan Commission, Congress in 1983 enacted reforms that included gradually raising the normal retirement age (but not the early retirement age) and subjecting some Social Security retirement benefits to federal income tax.

This led to temporary surpluses while baby boomers were in their peak earning years. But now that boomers are retiring rapidly, Social Security’s tax revenues are falling farther and farther behind benefits being paid out.

The trust fund is projected to run dry in about 15 years. Meanwhile, every year without reform adds to the share of the burden required of the young, who already are scheduled to have lower returns on their Social Security contributions than older workers.

Do you think that if someone offered millennials a choice, they would want to face huge student debt, declining government investment in their children and higher future taxes (which are inevitable as deficits mount) — in exchange for a more generous retirement than today’s retirees get? Or would they prefer a system that treats them and their children better when they’re younger?

We’re both way past millennial age — but we know which we would prefer.

Now, we’ll show you how we can tweak Social Security to address the problems we’ve discussed without cutting benefits for current retirees or denying future retirees average benefits higher than current retirees get.

It’s about math. Social Security pays out far more than would be required to provide well-above-poverty-level benefits to all elderly recipients. Future growth in the economy will help tax revenues and benefits rise, which would give us room to modify the payout formulas and deal with problems that this iconic program isn’t addressing.

Those problems include poverty and near-poverty for millions of retirees, particularly the very old. That problem is greater for people who retired at 62 rather than waiting for their full retirement age, a move that locks them into lower payments for the rest of their lifetimes.

How can we orient the system more progressively to the needs of modern society, provide a stronger base of protection for all workers, and slow the growth rate of benefits to bring the system into better balance? To shore up Social Security permanently, it’ll be necessary to slow down the overall growth in benefits, encourage more years of work and end the pattern of people having ever-longer retirements as lifespans increase and Social Security doesn’t adapt its rules. At some point, it will also require a revenue (i.e., tax) increase, too.

Here, in simplified form, are some suggestions for making Social Security more modern and more fair.

  • Change the benefit structure. Reduce the level of benefits that retirees get in their 60s and early 70s but give them higher-than-now benefits in their mid-to-late 70s and beyond. That would shift resources to retirees’ elder years when they have greater needs, including a higher probability of having to pay for long-term care.
  • Raise the minimum benefit. Have a strong minimum benefit for most elderly that’s indexed to wage growth, which typically exceeds inflation. This would raise benefits for one-third to one-half of the elderly in a way that will essentially remove them from poverty.
  • Trim benefit growth for those at the top. Offset at least part of the cost of higher minimum benefits by paying the highest-paid recipients less in the future than they would get under the current formula. Slow the rise in benefits for future retirees with way-above-average lifetime earnings by indexing their benefits to inflation rather than to wage growth.
  • Index the retirement age. Having people work for additional years helps pay for higher levels of both lifetime and annual benefits. So if people on average are living a year longer, they should have to work a year longer. Those additional income and Social Security taxes would help support both Social Security and national needs that are higher priority than paying additional retirement years. Gradually phase out the early-retirement age that leads many healthy couples to retire on Social Security for close to three decades for the spouse who lives longer.
  • Make spousal and survivor benefits more fair. Modify these benefits so that they provide higher benefits for those with greater needs rather than giving the richest bonuses to the richest spouses even when they contributed less in taxes than lower-income spouses. Otherwise, use rules similar to what private pensions use, so that benefits are shared fairly for the time of marriage together.

And one final thing: Bye-bye Late-in-Life-Baby Bonus. Stop paying retirees extra for children under 18. Continue the young-child bonus for widows or widowers below retirement age, and for people on disability.

Eliminating that bonanza for older parents would be a symbolic first step. And who can say? Perhaps now that lots more people (including possibly Trump himself) know that the Late-in-Life-Baby Bonus exists, our leaders might just be embarrassed enough to realize that the sooner Social Security is adapted to modern needs and circumstances, the better.

If this results in starting to fix Social Security the right way, the Late-in-Life-Baby Bonus will have delivered a big-time bonus of its own. The beneficiaries would be our future retirees, our workers and our country as a whole.


Donald Lubick: Public Servant

This column first appeared on TaxVox.

The Tax Policy Center is hosting its third annual Symposium in honor of Donald C. Lubick on Monday, April 9 at the Brookings Insitution. Given the chaos that defines tax policy these days, it seems like a good time to explain why we both honor Don and desperately need more leaders like him.

Don served presidents Kennedy, Johnson, Carter, and Clinton, and served on President-elect Obama’s transition team in 2008. That’s public service over more than four decades. He also worked to improve tax policy from Buffalo, NY to Eastern Europe.

A protégé of the legendary Stanley Surrey, Don is guided by basic principles of tax policy: efficiency, simplicity, and the concept of horizontal equity–idea that that equals should be treated equally under the law.

Even though he started out as a Republican, he also believed in progressivity. Yes, Don was once a Republican. His great friend Stu Eizenstat told me that the Kennedy Administration almost didn’t hire Don. The White House asked Stan Surrey why it should give an important tax policy job to a registered Republican. The answer, of course, was that Don was talented about tax policy and that he would serve Democratic Administrations as well as any other.

The principles that are so important to Don do not always lead to exact conclusions about what policy is best, but they create important boundaries that frame policymaking.

As one of Don’s students at Treasury, I learned that while politics requires compromises, the first draft of policy should hew to those principled boundaries.

Don surely didn’t win every battle. He failed to convince President Carter to veto the 1978 tax cut that included almost no reform. And Stu recounts that the only time Don ever read congressional testimony verbatim was when he was asked to defend some energy tax credits.

When I first worked with Don, Treasury’s Office of Tax Policy played a much larger role formulating policy for both the President and Congress than it does today. Few outside the office can fully know how they benefit from Don’s work building upon the culture, ethic, and practice of that vital office.

Unfortunately, as the legislative branch reasserted control over each stage of tax policy formulation, and the White House asserted ever more control over the Treasury, decisions became more politicized much earlier in the process, losing focus on those policy foundations that are so important to Don. As we saw last year, Congress has yet to figure out how write that all-important first draft in a way that will sustain a principled basis as that tax legislation moves toward enactment.

Reflecting on that trend, Don famously quips that each of his tours at Treasury was better than the next. He repeatedly answered the call to public service, at significant financial cost. And while in private practice, he forswore the allure of the giant law firm, choosing instead firms where teamwork was more valued. He leads through vision, creates an esprit de corps among those staff with whom he works, makes debates over tax policy exciting, and easily shares credit.

All of us at TPC are pleased to honor a person of such character, whose legacy will long influence how good tax policy is made and help us recognize when it is not.


Pete Peterson and Our Chaotic National Debates

This column originally appeared on TaxVox.

Each person’s death gives us a moment to pause and ask what lessons their lives offer for us. Here is a lesson from the life of Peter G. (Pete) Peterson, who died on March 20, 2018 at the age of 91: We could reduce our current political chaos by shifting more political resources toward efforts to find sensible, consensus solutions to policy challenges.

Pete Peterson played large on the national stage, in business, politics, and policy. In recent years, he focused much of his energy—and his money—on the Peter G. Peterson Foundation.

Pete’s particular concern was government budgets, which is the focus of his foundation. His long-standing push for fiscal prudence has been attacked by some on both left and right, but his concerns rested on two apolitical truths: Debt cannot keep rising faster than income, and the consequences of fiscal policy go beyond budget deficits to affect issues such as how we invest in our children. He sometimes called himself the last of the Rockefeller Republicans, taking on Democrats and Republicans alike.

I worked with Pete as Vice-President of his foundation. The Urban Institute and the Tax Policy Center, where I currently work, receive research grants from his foundation. So, I am not a disinterested party when it comes to either Pete or budget policy. But Pete’s life was an example of how to engage in national debates.

Today, these debates are often dominated by partisanship and what we might call “self-interest” groups. This aspect of politics—and political money– won’t go away, but it’s way out of proportion to how we should be spending our precious resources in engaging policy issues.

Unfortunately, instead of seeking devoting a fair share of resources toward creating a rational common ground, we get sucked into supporting an escalating arms race aimed at opposing those idiots on the other side.

The large national organizations that pursue their own particular agendas–whether the NRA, AARP, Chamber of Commerce, or AFL-CIO–may represent legitimate issues. But by scaring us into believing they are preserving our very lives and liberty, and that we should be offended at any reform that asks us to give up anything, they distort reality, raise more money, and attain even more influence and power.

It is the same with electoral politics. Noncompetitive legislative districts have long elected representatives who serve the median voter in their own party, but not the district as a whole. Interest groups have long figured out how to exploit that system to further divide and conquer.

The media feeds on and amplifies the frenzy. It seeks controversy, which is not the same as seeking truth. Like moths led to a flame, our media has become easily manipulated by those who recognize that controversy creates attention; attention produces fame; and fame enhances power.

So, what does Pete have to do with all of this?  None of what I have noted about the use of power is new, but the way to prevent self-interest groups from dividing us for their own objectives is simple: unite. Stop being so outspent by those groups. Instead of lavishing donations on the arms race of such interest groups and the two major political parties, do what Pete did and focus resources on efforts to create that elusive common ground for rationale dialogue.

Pete had nothing against groups with very specific policy agendas. After all, he funded several. But those groups do not focus on convincing policymakers to shift resources from other special interests for their own benefit. Rather, they argue for budget and trade policy that they believe enhance the greater good. You don’t have to agree with Pete’s priorities to recognize that he was not attempting to promote any political party’s agenda, but to support those who could compromise civilly on common objectives. It is a lesson worth remembering.


Charities Have Plenty of Opportunity to Advance Giving Despite Tax Law Losses

This column originally appeared in TaxVox. A longer version of this essay was first published in the Chronicle of Philanthropy.

By substantially cutting the number of taxpayers who will receive a charitable deduction, the Tax Cuts and Jobs Act (TCJA) has created an opportunity for charities to help redesign the tax subsidies that are so important to their fundraising. Indeed, they—and Congress—are almost compelled to do so.

After all, the TCJA’s overhaul of the individual income tax leaves only a little over one-tenth of households — mainly high-income taxpayers —  eligible to deduct their charitable gifts in 2018. Because the new law significantly increases the standard deduction (to $12,000 for singles and $24,000 for couples), and trims some key itemized deductions, the vast majority of taxpayers will forego itemizing. As a result, the number of households taking the charitable deduction will fall from 37 million to 16 million.

A charitable deduction available only to the most affluent donors may not be politically sustainable. That said, nonprofits must present Congress not simply with a wish list but with alternatives that can better encourage giving without adding significantly to the rising federal budget deficit and in a way that is easily administrable by the IRS.

Non-profit organizations also must acknowledge public concerns about the way they are managed. Often, they receive only limited support from both Democratic and Republican lawmakers, who sometimes see them as just another special interest group. These same policy makers read widespread stories of abuse, including overvaluation of deductions claimed by taxpayers.

Lawmakers question whether highly-compensated executives at non-profits are as committed to their charity’s mission as its contributors. Indeed, the TCJA also imposed a  new excise tax on  non-profits that pay their executives $1 million or more and a new tax on investment income earned by private colleges with large financial endowments.

That said, as charities face budget cuts and the people they serve lose services, it seems easier than ever to make the case that government should renew its commitment to a strong and effective charitable sector.

A widely-available tax benefit for charitable donations could be a marvelous way to demonstrate that the US government and the public value those who help others. It could strongly reinforce and champion America’s exceptional tendency to solve problems through charitable efforts. In return for this and other reforms, nonprofits would agree that legislation should be designed around evidence as to what best encourages giving.

Here are three ways Congress could improve tax incentives for charitable giving at little or no additional loss of revenue.

First, extend the charitable deduction to everyone, but only for charitable contributions that are greater than some stated share of income. This could encourage more giving but concentrate the tax subsidy on those gifts above what people would likely give without a deduction. Such a design could not only be more cost-effective but it would limit the gifts that a resource-constrained IRS would have to monitor.

Second, let people deduct right away any gifts they make through April 15 (or before  they file their tax returns) rather than keeping  the current law’s December 31 deadline. This schedule, like the one the Tax Code applies to contributions to individual retirement accounts, would provide more bang per buck than almost any other charitable incentive I have examined. The House has passed such a bill in the past.

Third, improve the system charities use to report the gifts they receive to donors and to the IRS. Yes, reporting to the IRS what they usually report to individuals would mean a bit more work and expense for non-profits, but this simple step would reduce tax cheating and generate additional revenue that Congress could use to enhance tax incentives for real givers.

Of course, these efforts may go nowhere if attempts are not made to improve the image of the nonprofit world. We need a long-term and broad campaign focused on extolling examples of generosity, with less attention to specific charities or campaigns since people vary widely in the types of efforts they like to support.

The losses to charities in the new tax law are significant — a decline of about 30 percent in the federal tax subsidy for charitable giving. Yet this adversity may create an opportunity to design cost-effective tax subsidies, reduce tax non-compliance, and enhance the reputation of charities. A drive to strengthen the nation’s charitable efforts provides common ground for a nation desperately in need of reforms that unite rather than divide us.

 


Did the President and Congress “Give” Us a Tax Cut?

This column originally appeared on TaxVox.

Politicians love to claim that they have given us something. “We want to give you, the American people, a giant tax cut for Christmas. And when I say giant, I mean giant.” So proclaimed President Trump, with words echoed by many Congressional leaders.

There were only two problems with the statement. The tax cut wasn’t giant and the President and Congress didn’t give us anything.

Not that Republicans stand alone in their claims of generosity. Democrats claimed they gave millions of Americans health insurance when they passed the 2010 Affordable Care Act.

But while Congress and the President credit themselves for giving us something, they really are transferring public resources to some of us from others. In aggregate and over time, we must pay for anything they claim to give.

I find it easiest to divide the two sides of the balance sheet required for new legislation into giveaways and takeaways. Giveaways generally come in the form of tax cuts and spending increases, takeaways in the form of spending cuts and tax increases. Just as sources of funds must equal uses of funds for the budget as a whole, so also for new legislation must the sum of new giveaways be balanced by new takeaways.

Of course, some of the takeaways can be deferred through borrowing. Politicians never count those costs when announcing the amount they claim to have given us.

In a 1976 column in the journal National Observer, entitled, “Taxes and the Two Santa Claus Theory,”  conservative columnist and editor Jude Wanniski argued that Republicans needed be the party of tax cuts the way he asserted that Democrats  played Santa Claus when they increased spending for social programs or passed redistributionist tax legislation.

At that time, Republicans had long been a minority party, particularly in the House of Representatives. Wanniski argued that they would never gain power as long as they simply opposed Santa-like spending increases or promoted raising taxes to pay for them.

In some ways, he got what he wanted. In the first years of the Republican presidencies of Ronald Reagan, George W. Bush, and Donald Trump, Congress passed tax cuts.

Trump’s description of the Tax Cuts and Jobs Act (TCJA) as a Christmas gift lends full credence to the belief that political parties try to retain power by acting as Santa. What Wanniski hadn’t fully anticipated was how far we have gone toward having two Santas acting at the same time, with scheduled spending increases being matched by new tax cuts that make the whole federal fiscal system increasingly unsustainable.

I’m not arguing the relative merits of tax cuts versus new spending. Government can—and should—shift resources in ways it believes will provide a future return to society. But that is different from saying that the money is free, like a gift from Santa.

For instance, Republicans believe shifting resources to business in the form of tax cuts in the TCJA will generate an economic return just as families believe they would generate a return by shifting money to pay for their children’s education. But neither Congress nor families can claim that the transaction is free, just because the money came from additional borrowing on our public or family credit card.

While both government and personal debt tempt us to live for today, only with government debt can Santa leave an IOU for Americans not yet identified and in some cases not yet born. The two competing Santas explain better than anything why borrowing in the U.S. has increased extraordinarily in recent decades, continually rising to new all-time highs outside of a World War II peak that was scheduled to decline quickly once war spending ended.

While analysts at the Tax Policy Center and Joint Committee on Taxation can distribute specified changes in the law—for instance, who benefits from higher child tax credits—they can’t identify the future losers. Thus, the distributional tables, just like claims that our elected officials have given us something, are often incomplete and in some ways misleading. While these analysts can and do at times examine implications such as how tax cuts or spending increases might eventually be financed, those analyses get much less press attention than the explicit listing of today’s known “winners” and “losers.”

The damage to good budget policy is obvious. It will always have trouble getting traction as long as we fail to recognize that we, not the President or Congress, are the ones who pay for what they claim to give away.


The TCJA Will Create More Complexity for Taxpayers Than It Claims

This column originally appeared on TaxVox.

Among the most complex provisions of the Tax Cuts and Jobs Act (TCJA) is its special tax deduction for income earned by pass-through businesses. In an attempt to prevent the new tax break from turning into an unmitigated revenue loss for the Treasury, Congress created a set of complicated “guardrails” to limit its use. Almost all tax experts agree that many businesses will need to consult tax lawyers and accountants for years to come to minimize taxes and insure compliance with the new law. Perhaps millions will change their form of ownership. Some taxpayers will also find it desirable to create multiple layers of corporations, partnerships, and other pass-through businesses, with varying degrees of ownership, to minimize their tax burden.

Yet, the official “complexity analysis” that accompanies the just-passed TCJA falls far short of telling the real story of how challenging this provision will be for many business owners.

In 1998, Congress enacted the IRS Restructuring and Reform Act that, in part, required the staff of the Joint Committee on Taxation, in consultation with the Internal Revenue Service and the Treasury Department, to provide a tax complexity analysis “for all legislation reported by the Senate Committee on Finance, the House Committee on Ways and Means, or any committee of conference.” The analysis is supposed to specify any added costs or additional recordkeeping for individuals and small businesses, as well as any need for regulatory guidance.

As required, JCT did produce such an analysis just before the House passed the TCJA and again just before Congress adopted a final bill. But because Congress produced the TCJA in less than two months, it appears that JCT, IRS, and Treasury were overwhelmed with other work and simply did not complete a proper complexity analysis. The pass-through provisions are the most striking example of this shortcoming.

Some provisions of the new law attempt to deter employees from converting themselves into a business or independent contractor to benefit from this tax break. Others attempt to separate “owners” from “employees” even when both make the same amount of money from the same partnership. Limits are placed on the deduction for income from “personal service” companies. Other limits are based on taxable income or wages paid. Meanwhile, because Congress established a corporate income tax rate that is significantly lower than the individual income tax rate, businesses must decide whether to organize specific business activities as pass-through entities or as a taxable corporation.

Here is JCT’s full analysis:

It is estimated that the provision will affect over ten percent of small business tax returns.

It is not anticipated that individuals will need to keep additional records due to the provision. It should not result in an increase in disputes with the IRS, nor will regulatory guidance be necessary to implement this provision. It may, however, increase the number of questions that taxpayers ask the IRS, such as how to calculate qualified business income and how to apply the phaseins of the W–2 wage (or W–2 wage and capital) limit and of the exclusion of service business income in the case of taxpayers with taxable income exceeding the threshold amount of $157,500 (twice that amount or $315,000 in the case of a joint return), indexed. This increased volume of questions could have an adverse impact on other elements of IRS’s operation, such as the levels of taxpayer service. The provision should not increase the tax preparation costs for most individuals. The IRS will need to add to the individual income tax forms package a new worksheet so that taxpayers can calculate their qualified business income, as well as the phaseins. This worksheet will require a series of calculations.

The analysis says the provision will affect “over ten percent of small business tax returns.” But a number between 10 percent and 100 percent is not very informative, and in any event, there are millions of small businesses.

The analysis asserts that “[i]t is not anticipated that individuals will need to keep additional records” and “[i]t should not result in an increase in disputes with the IRS nor will regulatory guidance be necessary.” This seems implausible at best given the obvious potential for gaming this provision.

The analysis’s claim that “[t]he provision should not increase the tax preparation costs for most individuals” is downright misleading. Since most individuals are not business owners, it is self-evident that their costs won’t increase due to this provision. But the real question, which the analysis does not answer, is what about those individuals who are business owners—or employees who can convert to being business owners as independent contractors? Almost surely, the increased record-keeping alone should increase costs.

Perhaps most importantly, the analysis is silent on the required planning “costs to taxpayers” that nearly always exceed those associated with filing tax returns.

As a former Treasury official, I greatly respect those nonpartisan offices that serve the public so well, such as the JCT and the Treasury’s Office of Tax Policy. I once dedicated a book to IRS personnel, who do the thankless task of reducing the share of the taxes borne by honest taxpayers. So, I do not make this criticism of their work product lightly.

In the case of the complexity analysis of the TCJA, these agencies have more work to do to fulfill the spirit of the law, not just its letter. More important, Congress needs to legislate in a way that allows staff to fulfill the 1998 statutory mandate.

Thanks to Robert Pear of The New York Times, who first asked me about the House bill’s complexity analysis.


Ten Wishes for the New Year

I wish…

  1. that presidents, Cabinet members, legislators, and other elected officials would be held to the same ethical standards and penalties for wrong-doing as entry-level civil servants;
  2. that Congress would attack sycophancy directly by slashing the number of political appointees and the larger number of would-be appointees who view it as the route to power;
  3. that the media would examine how its pursuit of stories with sensationalism and conflict has been exploited by terrorists and unethical politicians alike to garner attention and power;
  4. that news shows would recognize that interviewing paired Democrat and Republican spokespeople leaves out the plurality of people whose expertise, not political leanings, drives what they say;
  5. that more voters would stop equating so much of their personal identity with some political party banner so they would find it easier to object strongly to the wrongful actions of those for whom they voted;
  6. that laws would be written to penalize more the individuals who are ultimately responsible for corporate misbehavior and less the consumers and workers who often bear the costs;
  7. that churches claiming to prioritize the poor would come to recognize the symbolism of keeping the poor box at the back of the church and passing a collection plate for the poor only after passing one for themselves;
  8. that athletes signing lucrative contracts would start negotiating over money for community and public purposes rather than just themselves;
  9. that charities would unify around promoting the good and addressing the bad in their midst; and
  10. that everyone of goodwill would take heart by recognizing how important you are for bringing order out of disorder, peace amid conflict, and, for me, a continuing sense of thankfulness and hope.

How Congress Violates Its Own Goals for Tax Reform

This post originally appeared on TaxVox.

Bismarck is credited with the warning: “If you like laws and sausages, you should never watch either one being made.”  It is never truer than with tax legislation, and Tax Cuts and Jobs Act (TCJA) is no exception.

Even the Tax Reform Act of 1986, held by many as a model of reform, resulted in its fair share of deform and complexity. The reason then was the same as it is today:  Accommodating the demands of lawmakers requires special interest give-backs (reversing or modifying proposed reforms) that are, in turn, paid for with badly-designed and gimmicky revenue-raisers.

Here are just a few examples of how either the House or Senate Finance Committee versions of the TCJA would move backward from stated goals of reform: While their aim is to lower tax rates, they’d create backdoor individual income tax rate increases. They’d delay the effective dates of some provisions and make others temporary, decrying the use of such gimmicks in current law, then almost bragging that “a lot of this is a gimmick” in defining their own efforts. They’d raise taxes for many families with children in the name of reducing taxes to help them meet their living expenses, and they’d make some business taxes more complex while purporting to simplify them.

 “Bracket creep” that raises average tax rates. As peoples’ incomes rise over time due both to real wage increases and inflation, they move into higher income tax brackets. Current law protects them in part by indexing the tax code for inflation using the Consumer Price Index. But the House and Senate Finance bills would use a less generous inflation index so tax rates rose more quickly as people moved into higher tax brackets faster and indexed tax credits would grow more slowly. The effect is relatively modest to start but it compounds decade over decade.

A new bubble tax rate. Copying one gimmick from the ’86 Act, the House bill would require people with moderately high incomes to pay a 6-percentage point surtax. My colleague, Bill Gale describes how this and other provisions would create a hidden combined top marginal tax rate of 49.4 percent. But the House bill adds yet another gimmick that would raise marginal tax rates even faster on more people.

The added glitch in creating a bubble top rate. Though the 1986 law, too, imposed a surtax on some taxable income, it was made transparent in a new tax rate table that showed rates of 15, 28, 33, then 28 percent. The 33 percent rate wiped out benefits of the lower income tax rates. The new bill requires a new more complicated calculation because the surtax is imposed on adjusted gross income, not taxable income. As a result, more people pay the surtax and adjustments to income that reduce taxable income, such as charitable deductions, are disallowed for purposes of the surtax.

Exchanging a higher standard deduction and an indexed child credit for removal of personal exemptions. This combination of tax policies was not based on any theory of taxation of the family. Elsewhere I have explained how it arose in response to simplistic proposals to double the standard deduction. And my colleague Elaine Maag gives examples of some of the losers. One tradeoff:  Displacing a personal exemption indexed for inflation while adding a child credit that for most households would not be indexed for inflation would gradually increase taxes on families with children in a bill that is touted to be pro-family. And, oh, the standard deduction isn’t being fully doubled.

The new partnership and flow-through business rules. My colleague Steve Rosenthal details some of the problems  with the new proposals for taxing  “pass-through” businesses such as sole proprietorships, S-Corporations, and partnerships. These ideas would be extremely complicated for taxpayers. They’d also violate a key principle of the ’86 Act—that top income tax rates would not be greatly different for different types of income, whether earned by workers or owners, corporations or partnerships. Noncorporate tax law, in turn, has long recognized the near-impossibility of trying to distinguish returns for labor from those for capital. The traditional solution: set similar top rates for all types of income and all types of owners.

But the House and Senate bills turn this on its head by trying to lower taxes for corporations and some other business owners, but not for workers or working owners of some firms. The big winners are the lawyers and accountants already making millions of dollars finding ways to save their clients billions of dollars by changing ownership arrangements in new, creative, ways.

As Bismarck knew, the price of any “reform” is often the deal-making necessary to round up votes. If the net result is better law, these changes may be the cost of doing political business. If not, it is just worse tax law.