White House Releases Tax Proposals as Part of Fiscal Year 2022 Budget Plan

(Parker Tax Publishing June 2021)

In late May, the Biden Administration released its proposed budget for fiscal year 2022. Proposals in the budget, which are described in the General Explanations of the Administration's Fiscal Year 2022 Revenue Proposals (also known as the "Greenbook"), include (1) increasing taxes on high-income taxpayers and corporations; (2) ending the carried interest tax break; (3) repealing the carryover and step-up basis rules for transfers by gift or at death; (4) expanding tax credits aimed at supporting workers, families, and low-income housing; (5) repealing the gain deferral on certain like-kind exchanges; (6) incentivizing U.S. employers to bring offshore jobs and investments into the United States; (7) disincentivizing the reduction or elimination of a trade or business currently being conducted in the United States from starting up, expanding, or otherwise moving to a location outside the United States; (8) providing additional expenditures for clean energy; (9) increasing funding for IRS enforcement; (10) increasing oversight of paid tax return preparers by providing the Secretary of the Treasury with explicit authority to regulate all paid preparers of federal tax returns and establish minimum competency standards, and (11) creating a comprehensive financial account information reporting regime. General Explanations of the Administration's Fiscal Year 2022 Revenue Proposals.

Background

Each year, the President kicks off the federal government's annual budget process by sending Congress a detailed budget request for the coming year. The budget request lays out the President's recommendations for overall federal fiscal policy, communicates the Administration's priorities for federal programs, and provides recommendations for spending and tax policy changes. Last month, the Department of Treasury issued the Biden Administration's fiscal year 2022 budget request. Included with the request was the General Explanations of the Administration's Fiscal Year 2022 Revenue Proposals (i.e., the "Green Book") which provides an explanation of the Administration's revenue proposals for 2022.

On the heels of the passage of the American Rescue Plan in March, the Biden Administration announced two more initiatives - the American Jobs Plan and the American Families Plan. Unlike the American Rescue Plan, which was not paid for with additional taxes, the Administration proposes to pay for these two new initiatives through major changes to the Internal Revenue Code, as described in the Green Book. According to the Treasury Department, the tax-related proposals will raise $2.4 trillion in revenue over a 10-year period. The cost of 2022 budget, along with mandatory spending programs, is $6 trillion.

If passed, the changes contained in the Green Book would result in a major overhaul of the Internal Revenue Code. A summary the proposed changes follows.

Budget Proposals Relating to High-Income Taxpayers

Individual Income Tax Rates. The budget proposes to increase the top marginal individual income tax rate for the highest income taxpayers, which was reduced to 37 percent under the Tax Cuts and Jobs Act, back to 39.6 percent. This rate would be applied to taxable income in excess of the 2017 top bracket threshold, adjusted for inflation. In 2022, the top marginal tax rate would apply to taxable income over $509,300 for married individuals filing a joint return, $452,700 for unmarried individuals (other than surviving spouses), $481,000 for head of household filers, and $254,650 for married individuals filing a separate return. After 2022, the thresholds would be indexed for inflation. The proposal would be effective for tax years beginning after December 31, 2021.

Long-term Capital Gains and Qualified Dividends. The budget proposes that taxpayers with adjusted gross income (AGI) of more than $1 million would be taxed at ordinary income tax rates under the budget proposal, with 37 percent generally being the highest rate (or 40.8 percent if the taxpayer is subject to the 3.8 percent net investment income tax (NIIT)), but only to the extent that the taxpayer's income exceeds $1 million ($500,000 for married filing separately), indexed for inflation after 2022. For example, a taxpayer with $900,000 in labor income and $200,000 in preferential capital income would have $100,000 of capital income taxed at the current preferential tax rate and $100,000 taxed at ordinary income tax rates.

Repeal of Carryover and Step-Up Basis Rules. The budget proposes would repeal the carryover and step-up basis rules for transfers by gift or at death and instead treat such transfers as realization events. For a donor, the gain realized would be the excess of the asset's fair market value on the date of the gift over the donor's basis in that asset. For a decedent, the amount of gain would be the excess of the asset's fair market value on the decedent's date of death over the decedent's basis in that asset. In addition, gain on unrealized appreciation would be recognized by a trust, partnership, or other non-corporate entity that is the owner of property if that property has not been the subject of a recognition event within the prior 90 years, with such testing period beginning on January 1, 1940. Certain exclusions would apply, including allowing carryover basis for transfers by a decedent to a U.S. spouse or to charity. The proposal would also allow a $1 million per-person exclusion from recognition of other unrealized capital gains on property transferred by gift or held at death.

Expansion of the 3.8 Percent Medicare Tax to Additional Taxpayers. The budget proposes that all trade or business income of high-income taxpayers would be subject to a 3.8 percent Medicare tax (i.e., the 2.9 percent Medicare tax on all employment earnings, plus the 0.9 percent Medicare tax imposed on self-employment earnings and wages of high-income taxpayers), either through the NIIT or Self-Employment Contributions Act (SECA) tax. In particular, for taxpayers with AGI in excess of $400,000, the term "net investment income" as used in Code Sec. 1411 would include trade or business gross income and gain not otherwise subject to employment taxes. In addition, limited partners and LLC members who provide services to, and materially participate in, their partnerships and LLCs, as well as S corporation owners who materially participate in their trade or business, would be subject to SECA tax on their distributive shares of the business's income to the extent that the income exceeds certain threshold amounts.

Budget Proposals to Close Loopholes

Repeal of the Carried Interest Tax Break. The budget proposes to end the carried interest tax break under Code Sec. 1061, which currently treats an investment fund manager's share of an investment fund's profits as long-term capital gain subject to the more favorable long-term capital gains tax rates. Under the proposal, a partner's share of income on an investment services partnership interest (ISPI) in an investment partnership would be taxed as ordinary income, regardless of the character of the income at the partnership level, if the partner's taxable income (from all sources) exceeds $400,000. In addition, the proposal would require partners in such investment partnerships to pay self-employment taxes on such income. An ISPI is a profits interest in an investment partnership that is held by a person who provides services to the partnership. A partnership is an investment partnership if substantially all of its assets are investment-type assets, but only if over half of the partnership's contributed capital is from partners in whose hands the interests constitute property not held in connection with a trade or business.

Repeal of Certain Like-Kind Exchange Deferrals. The budget proposes to repeal the deferral of gain from some like-kind exchanges under Code Sec. 1031. Instead, any gains from like-kind exchanges in excess of $500,000 ($1 million in the case of married individuals filing jointly) during the tax year would have to be recognized in the year the taxpayer transfers the real property subject to the exchange.

Excess Business Loss Limitation Made Permanent. The budget proposes to make permanent the excess business loss limitation of noncorporate taxpayers under Code Sec. 461(l), which currently applies for tax years beginning after December 31, 2020, and before January 1, 2027.

Budget Proposals to Expand Tax Credits for Workers and Families

Decrease in Premium Tax Credit Contribution Percentages Made Permanent. With respect to the premium tax credit (PTC) under Code Sec. 36B for individuals who purchase health insurance through an insurance exchange, the budget proposes to make permanent the temporary decrease enacted by the American Rescue Plan (ARP) Act of 2021 in the applicable contribution percentages of household income used for determining the amount of the credit. The proposal would also make permanent the ARP expansion of PTC eligibility to taxpayers with household income above 400 percent of the federal poverty line.

ARP EITC Changes Made Permanent. The budget proposes to make permanent the increase enacted by the ARP in the earned income tax credit (EITC) phase-in and phase-out rates, and the income range over which the credit phases in, for workers without children. In addition, the end of the phase-in and the end of the plateau income ranges would be indexed for inflation in the same manner as other EITC parameters. The proposal would also make permanent the ARP expansion of age-eligibility for the EITC that currently applies only for 2021.

ARP Child and Dependent Care Tax Credit Changes Made Permanent. The budget proposes to make permanent the changes to the child and dependent care tax credit (CDCTC) under Code Sec. 21 enacted in the ARP for tax year 2021, which includes making the CDCTC refundable and increasing the amount of expenses, the maximum rate, and the applicable percentage of expenses that are eligible for the CDCTC. In addition, the proposal would establish reporting requirements such as adding the CDCTC to the list of credits subject to paid preparer due diligence requirements under Code Sec. 6695(g).

Extension of ARP Child Tax Credit Changes. The budget proposes to extend, to tax years beginning before January 1, 2026, most of the ARP changes to the child tax credit (CTC) under Code Sec. 24, including: (i) allowing children age 17 to qualify for the CTC, (ii) increasing the maximum tax credit per child to $3,600 for children under age 6 and to $3,000 for all other qualifying children, and (iii) allowing 50 percent of the otherwise allowable credit to be paid in advance based on information on the previous year's income tax return. In addition, the CTC would be made fully refundable, regardless of earned income, for all tax years.

Increase in Existing Employer-Provided Child Care Credit. The budget proposes to increase the existing tax credit for employer-provided childcare under Code Sec. 45F from 25 to 50 percent of the first $1 million of qualified care expenses for a maximum total credit of $500,000 per year (increased from the current maximum of $150,000 per year). The portion of the tax credit related to referral expenses would remain at 10 percent with a maximum amount of $150,000.

Budget Proposals to Prioritize Clean Energy

Elimination of Fossil Fuel Tax Preferences. The budget proposes to eliminate fossil fuel tax preferences by repealing: (i) the enhanced oil recovery credit for eligible costs attributable to a qualified enhanced oil recovery project; (ii) the credit for oil and gas produced from marginal wells; (iii) the expensing of intangible drilling costs; (iv) the deduction for costs paid or incurred for any tertiary injectant used as part of a tertiary recovery method; (v) the exception to passive loss limitations provided to working interests in oil and natural gas properties; (vi) the use of percentage depletion with respect to oil and gas wells; (vii) the two-year amortization of independent producers' geological and geophysical expenditures, instead allowing amortization over the seven-year period used by integrated oil and gas producers; (viii) the expensing of exploration and development costs; (ix) the percentage depletion deduction for hard mineral fossil fuels; (x) the capital gains treatment for royalties; (xi) the exemption from the corporate income tax for publicly traded partnerships with qualifying income and gains from activities relating to fossil fuels; (xii) the Oil Spill Liability Trust Fund excise tax exemption for crude oil derived from bitumen and kerogen-rich rock; and (xiii) the accelerated amortization for air pollution control facilities.

Extension of Renewable Electricity Production Tax Credit. The budget proposes an extension of the renewable electricity production tax credit under Code Sec. 45 for qualified facilities beginning construction after December 31, 2021, and before January 1, 2027. The proposal would also extend the credits for investments in solar and geothermal electric energy property, qualified fuel cell power plants, geothermal heat pumps, small wind property, offshore wind property, waste energy recovery property, and combined heat and power property. In addition, the proposal would extend the residential energy efficiency credit and expand residential energy efficient property to include qualified battery storage technology of at least three kilowatt hours of capacity installed in a residence. The credit would be restored to the full 30 percent rate for eligible property where construction begins after December 31, 2021 and before January 1, 2027. After 2026, the credit rate would begin to phase down to zero over five years.

Credit for Investing in Qualifying Electric Power Transmission Property. The budget proposes to provide a credit equal to 30 percent of a taxpayer's investment in qualifying electric power transmission property placed in service in a given year. Qualifying electric power transmission property would include overhead, submarine, and underground transmission facilities meeting certain criteria. Qualifying property would also include any ancillary facilities and equipment necessary for the proper operation of the transmission facility.

New Credit for Electricity Generation. The budget proposes to create an allocated production credit for electricity generation from eligible existing nuclear power facilities that bid for the credits. Up to $1 billion in credits would be available in each year to be allocated based on an evaluation of the bids received and the goal of maximizing the preservation of existing nuclear electricity generation.

Modification and Expansion of Qualifying Advanced Energy Project Credit. The budget proposes to modify and expand the qualifying advanced energy project credit under Code Sec. 48C. Among other changes, the definition of a qualifying advanced energy project would be revised to include: industrial facilities; recycling in addition to production; and expanded eligible technologies, including but not limited to energy storage and components, electric grid modernization equipment, carbon oxide sequestration, and energy conservation technologies.

New Business Tax Credit for Certain Zero Emission Vehicles. The budget proposes to provide a business tax credit for new medium- and heavy-duty zero-emission vehicles, including battery electric vehicles and fuel cell electric vehicles, similar to the Code Sec. 30D tax credit for qualified plug-in electric drive motor vehicles that applies to passenger vehicles and light trucks.

New Production Tax Credit for Sustainable Aviation Fuel. The budget proposes to introduce a production tax credit of $1.50 per gallon for sustainable aviation fuel that achieves at least a 50 percent reduction in emissions relative to conventional jet fuel.

New Low-Carbon Hydrogen Production Tax Credit. The budget proposes to implement a low-carbon hydrogen production tax credit. For the purposes of the proposal, "low-carbon" refers to hydrogen produced using zero-carbon emissions electricity (renewables or nuclear) and water as a feedstock, or hydrogen produced using natural gas as a feedstock and with all carbon emitted in the production process captured and sequestered.

Extension of Code Sec. 25C Credit. The budget proposes to extend the Code Sec. 25C tax credit for certain expenditures to improve the energy efficiency of a taxpayer's principal U.S. residence five years and increase the lifetime limit from $500 to $1,200 for property placed in service after December 31, 2021 and before January 1, 2027. For qualified energy efficiency improvements, the credit rate would be increased to 15 percent and the credit amounts for certain types of residential energy property expenditures would also be increased. Also, the proposal would modify the definitions of eligible qualified energy efficiency improvements and residential energy property expenditures and update the required energy efficiency standards for such property.

Increase in the Code Sec. 45L Credit. The budget proposes to increase the Code Sec. 45L tax credit for an energy efficient home from $2,000 to $2,500 and extend the tax credit five years to December 31, 2026. The proposal would also modify and expand the types of dwelling units eligible for the credit.

Increase in the Code Sec. 179D Credit. The budget proposes to increase the maximum Code Sec. 179D deduction for energy efficient commercial building property placed in service during a tax year from $1.80 to $3.00 per square foot for qualifying property placed in service after December 31, 2021. In addition, the partial deduction rate would be increased from $0.60 to $1.00 per square foot for qualifying property placed in service after December 31, 2021. The required efficiency standard in relation to the reference building's total annual energy reduction would be adjusted from 50 percent to 30 percent.

New General Business Tax Credit for Qualifying Mechanical Insulation Labor Costs. The proposal would create a new general business tax credit for qualifying mechanical insulation labor costs. The tax credit would be equal to 10 percent of the mechanical insulation labor costs paid or incurred by the taxpayer during such tax year. Mechanical insulation labor costs would include the labor cost of installing mechanical insulation property, including insulation materials, and facings and accessory products, for a depreciable mechanical system that is placed in service in the United States and that satisfies certain energy loss reduction standards.

New Nonrefundable Credit for Homeowners and Businesses in Disaster Declaration Areas. The budget proposes to provide a nonrefundable tax credit for homeowners and businesses in or adjacent to areas where a federal disaster declaration has been made within the preceding 10-year period equal to 25 percent of qualified disaster mitigation expenditures capped at $5,000. For individual taxpayers, the credit would begin to phase out at an adjusted gross income of approximately $85,000 for single tax filers and approximately $170,000 for joint filers. For businesses, the phaseout would begin when the business has gross receipts above $5 million.

Enhanced Tax Credit for Capture and Sequestration of Carbon Dioxide. With respect to the tax credit for the capture and sequestration of carbon dioxide under Code Sec. 45Q, the budget proposes to extend the construction commencement date by five years, such that qualified facilities must begin construction by January 1, 2031. The proposal would also provide an enhanced credit for carbon oxide captured from hard-to-abate industrial carbon oxide capture sectors such as cement production, steelmaking, hydrogen production, and petroleum refining. In addition, the proposal would provide an enhanced credit for direct air capture projects.

Modification and Expansion of Tax Credit for Electric Vehicle Charging Stations. The budget proposes to modify and expand the tax credit under Code Sec. 30C for electric vehicle charging stations. Under the proposal, taxpayers could claim the tax credits on a per-device basis (i.e., electric vehicle supply equipment, or ESVE, also called a port or a charger). The proposal would also increase the tax credit limit on individual devices to $200,000 and extend the tax credit for five years through December 31, 2026.

Budget Proposals to Expand Housing Tax Credits

Expansion of Low-Income Housing Credit. The budget proposes to expand the low-income housing tax credit under Code Sec. 42 by creating an additional type of housing credit dollar amount (HCDA), called an "Opportunity HCDA" (OHCDA). State or local housing credit agencies (HCAs) would have a separate ceiling for OHCDAs from their existing allocation ceilings of HCDAs. HCAs would be required to allocate the majority of their OHCDAs to projects in certain specified areas as determined by the Secretary of the Treasury in consultation with the Department of Housing and Urban Development.

New Neighborhood Homes Investment Credit. The budget proposes to create a new tax credit, the "neighborhood homes investment credit" (NHIC), to support new construction for sale, substantial rehabilitation for sale, and substantial rehabilitation for existing homeowners. For each year between 2022 and 2031, a specified amount of potential NHICs would be allocated with an emphasis based on populations living in distressed areas.

Permanent Extension of New Markets Tax Credit. The budget proposes to permanently extend the new markets tax credit (NMTC) under Code Sec. 45D for qualified equity investments (QEIs) made to acquire stock in a corporation, or a capital interest in a partnership, that is a qualified community development entity (CDE). Under the proposal, to qualify for the NMTC, the investment must be held for a period of at least seven years and must have been made within five years after the CDE receives an allocation out of the national credit limitation amount for the year. The CDEs in turn make investments in low-income communities.

Budget Proposals Relating to Corporate Taxation

Increase in Corporate Tax Rate. The budget proposes to increase the income tax rate for C corporations from the current 21 percent rate enacted by the TCJA to 28 percent.

Removal of Incentives to Invest Abroad. The budget proposes to make several changes to the existing global minimum tax system in order to remove the incentive for U.S. multinational companies to invest in tangible assets abroad rather than domestically and limit the ability of domestic corporations to expatriate using inversion transactions.

Removal of GILTI Exemption. The budget proposes to reform the taxation of foreign fossil fuel income by removing the exemption from global intangible low-taxed income (GILTI) for foreign oil and gas extraction income.

Repeal of Deduction for Foreign-Derived Intangible Income. The budget proposes that the deduction for foreign-derived intangible income would be repealed in order to remove the preference for multinational companies relative to domestic producers by offering tax incentives only to those companies with high export sales rather than those with largely domestic sales.

Replacement of Erosion Anti-Abuse Tax. The budget proposes that the base erosion anti-abuse tax would be replaced with a new rule disallowing deductions to domestic corporations or branches by reference to low-taxed income of entities that are members of the same financial reporting group (including a member that is a common foreign parent, in the case of a foreign-parented controlled group).

Limitation on Certain Foreign Tax Credits. The budget proposes to limit foreign tax credits for sales of an interest in a hybrid entity, i.e., an entity that is treated as a corporation for foreign tax purposes but as a partnership or disregarded entity for U.S. tax purposes.

Restriction of Deductions for Excessive Interest. The budget proposes to restrict deductions of excessive interest of members of financial reporting groups for disproportionate borrowing in the United States to prevent multinational groups from substituting debt for equity in a controlled entity in order to shift profits to lower-tax jurisdictions.

Imposition of a 15 Percent Corporate Minimum Tax. The budget proposes that a 15-percent minimum tax would be imposed on the worldwide book income of corporations with book income in excess of $2 billion.

New Incentives to Bring Offshore Jobs and Investments into the United States. The budget proposes incentives for U.S. employers to bring offshore jobs and investments into the United States by creating a new general business credit equal to 10 percent of the eligible expenses paid or incurred in connection with reducing or eliminating a trade or business currently conducted outside the United States and starting up, expanding, or otherwise moving the same trade or business to a location within the United States. The proposal would also disallow deductions for expenses paid or incurred in connection with reducing or eliminating a trade or business currently conducted inside the United States and starting up, expanding, or otherwise moving the same trade or business to a location outside the United States.

Budget Proposals to Improve IRS Enforcement and Administration

Increase in Funding for IRS Enforcement. The budget proposes to increase funding for the IRS Enforcement and Operations Support programs in order to fund improvements and expansions in the IRS's enforcement and compliance activities. The proposal would direct that additional resources go toward enforcement against taxpayers with the highest incomes, rather than those with income of less than $400,000.

Creation of Comprehensive Financial Account Information Reporting Regime. The budget proposes to create a comprehensive financial account information reporting regime. Financial institutions would report data on financial accounts in an information return. The annual return would report gross inflows and outflows with a breakdown for physical cash, transactions with a foreign account, and transfers to and from another account with the same owner. This requirement would apply to all business and personal accounts from financial institutions, including bank, loan, and investment accounts, with the exception of accounts below a threshold of $600 or fair market value of $600. Similar reporting requirements would apply to crypto asset exchanges and custodians.

Increased Oversight of Tax Return Preparers. The budget proposes to increase oversight of paid tax return preparers by providing the Secretary of the Treasury with explicit authority to regulate all paid preparers of federal tax returns, including by establishing minimum competency standards. In addition, penalties would be increased to the greater of $500 per return or 100 percent of the income derived per return by ghost preparers (i.e., paid preparers who fail to identify themselves on tax returns) and increase the limitations period during which the penalty may be assessed from three years to six years.

Expansion of Electronic Filing. The budget proposes to expand the IRS's authority to require electronic filing of forms and returns. Electronic filing would be required for returns filed by taxpayers reporting larger amounts or that are complex business entities. Electronic filing would also be required for certain forms, including Form 8918, Material Advisor Disclosure Statement, Form 8886, Reportable Transaction Disclosure Statement, and Form 1042, Annual Withholding Tax Return for U.S. Source Income of Foreign Persons. In addition, return preparers that expect to prepare more than 10 corporation income tax returns or partnership returns would be required to file such returns electronically. Information reporting for reportable payments subject to backup withholding would be improved by allowing the IRS to require payees of any reportable payments to furnish their tax identification numbers to payors under penalty of perjury.

Expansion of Cypto Asset Reporting. The budget proposes to expand the scope of information reporting by brokers who report on crypto assets to include reporting on certain beneficial owners of entities holding accounts with the broker. Brokers, including entities such as U.S. crypto asset exchanges and hosted wallet providers, would be required to report information relating to certain passive entities and their substantial foreign owners when reporting with respect to crypto assets held by those entities in an account with the broker.

Lengthening of the Statute of Limitations for Noncompliance with Listed Transactions. The budget proposes addressing taxpayer noncompliance with listed transactions by increasing the statute of limitations period under Code Sec. 6501(a) for returns reporting benefits from listed transactions from three years to six years. The proposal would also impose secondary liability on certain shareholders who sell a controlling interest in the stock of an applicable C corporation for payment of the applicable C corporation's income taxes, interest, additions to tax, and penalties to the extent of the sales proceeds received by the shareholders.

Changes to Centralized Partnership Audit Rules to Address Tax Decreases Greater than a Partner's Tax Liability. The budget proposes that the centralized partnership audit rules would be amended to address tax decreases greater than a partner's income tax liability. Specifically, Code Secs. 6226 and 6401 would be amended to provide that the amount of the net negative change in tax that exceeds the income tax liability of a partner in the reporting year is considered an overpayment under Code Sec. 6401 and may be refunded.

Authorization of Certain Intragovernmental Sharing of Business Tax Return Information. The budget proposal would authorize limited intragovernmental sharing of business tax return information by giving officers and employees of the Bureau of Economic Analysis access to certain federal tax information (FTI) of sole proprietorships with receipts greater than $250,000 and of all partnerships. The proposal would also give Bureau of Labor Statistics officers and employees access to certain FTI of business and tax-exempt entities.

Disclaimer: This publication does not, and is not intended to, provide legal, tax or accounting advice, and readers should consult their tax advisors concerning the application of tax laws to their particular situations. This analysis is not tax advice and is not intended or written to be used, and cannot be used, for purposes of avoiding tax penalties that may be imposed on any taxpayer. The information contained herein is general in nature and based on authorities that are subject to change. Parker Tax Publishing guarantees neither the accuracy nor completeness of any information and is not responsible for any errors or omissions, or for results obtained by others as a result of reliance upon such information. Parker Tax Publishing assumes no obligation to inform the reader of any changes in tax laws or other factors that could affect information contained herein.

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