DC Tax Flash: McConnell, Schumer Aim to Hammer Out Rescue Bill by Midnight

Tax Alert

Senate Majority Leader Mitch McConnell (R-KY) and Minority Leader Chuck Schumer (D-NY) met this morning to discuss a lightning-fast process for finding an agreement on legislation to rescue the U.S. economy and further respond to the coronavirus outbreak. The goal is to get a deal "in principle" by the end of today.

Leader McConnell said he plans to start the legislative process soon with a motion to proceed to a placeholder bill that will serve as the vehicle for the legislation that ultimately emerges from the day's discussions. The Majority Leader has said that he aims to get a bill passed by Monday. "The Senate is not going anywhere until we act," he said. "Senate Republicans are here and ready to work with our Democratic colleagues and the Administration to get results as soon as possible."

Yesterday, Senate GOP leaders introduced S. 3548, the "Coronavirus Aid, Relief, and Economic Security Act" (CARES Act), to provide unprecedented economic support for businesses and workers idled by the coronavirus outbreak, including direct transfer payments to taxpayers.

As currently drafted, the bill would deliver "recovery checks" of up to $1,200 for individuals and $2,400 for joint filers. That amount would increase by $500 for every child. "These checks are reduced for higher income taxpayers and begin phasing out after a single taxpayer has $75,000 in adjusted gross income and $150,000 for joint filers," the Finance Committee explains.

The text of the bill is posted here.

A Finance Committee summary of the bill's individual and business tax provisions is posted below and here.

A Finance Committee summary of the bill's health-related tax provisions is posted here.

A summary of the health provisions within the jurisdiction of the Health, Education, Labor, and Pensions (HELP) Committee is posted here.

A Commerce Committee summary of the bill's provisions affecting airlines and other distressed industries is posted here.

The bill includes many tax provisions directed at businesses, including the following, as summarized by the Senate Finance Committee:

Title II – Business Provisions

Section 2201. Delay of estimated tax payments for corporations

The provision allows corporations to postpone estimated tax payments due after the date of enactment until October 15, 2020. There is no cap on the amount of tax payments postponed. This delay will provide critical cash flow to help businesses maintain operations and continue paying employees during the COVID-19 emergency.

Section 2202. Delay of payment of employer payroll taxes

The provision allows employers and self-employed individuals to defer payment of the employer share of the Social Security tax they otherwise are responsible for paying to the federal government with respect to their employees. All employers are responsible for paying a 6.2-percent Social Security tax on employee wages. The provision requires that the deferred employment tax be paid over the following two years, with half of the amount required to be paid by December 31, 2021 and the other half by December 31, 2022. The Social Security Trust Funds will be held harmless under this provision.

Section 2203. Modifications for net operating losses

The provision relaxes the limitations on a company's use of losses from prior years. NOLs are currently subject to a taxable income limitation, and they cannot be carried back to reduce income in a prior tax year. This provision provides that a loss from 2018, 2019, or 2020 can be carried back five years. The provision also temporarily removes the taxable income limitation to allow an NOL to fully offset income. These changes will allow companies to utilize losses and amend prior years' returns, which will provide critical cash flow and liquidity during the COVID-19 emergency.

Section 2204. Modification of limitation on losses for taxpayers other than corporations

The provision modifies the loss limitation applicable to pass-through businesses and sole proprietors, so they can benefit from the NOL carryback rules described above and access critical cash flow to maintain operations and payroll for their employees.

Section 2205. Modification of credit for prior year minimum tax liability of corporations

The corporate AMT was repealed as part of the Tax Cuts and Jobs Act, but corporate AMT credits were made available as refundable credits over several years, ending in 2021. The provision accelerates the ability for companies to recover those AMT credits, permitting companies to claim a refund now and obtain additional cash flow during the COVID-19 emergency.

Section 2206. Modification of limitation on business interest

The provision temporarily increases the amount of interest expense businesses are allowed to deduct on their tax returns, by increasing the 30-percent limitation to 50 percent of the taxable income for 2019 and 2020. As businesses look to weather the storm of the current crisis, this provision will allow them to increase liquidity with a reduced cost of capital, so that they are able to continue operations and keep employees on payroll.

Section 2207. Technical amendment regarding qualified improvement property

The provision enables businesses, especially in the hospitality industry, to immediately write off costs associated with improving facilities instead of having to depreciate those improvements over the 39-year life of the building. The provision, which corrects an error in the Tax Cuts and Jobs Act, not only increases companies' access to cash flow byallowing them to amend a prior year return, but also incentivizes them to continue to invest in improvements as the country recovers from the COVID-19 emergency.

Section 2208. Installments not to prevent credit or refund of overpayments or increase estimated taxes

Section 965, the one-time repatriation toll charge, imposed a tax on the untaxed foreign earnings of U.S. companies in 2017. Companies had the option to pay the tax up front, or in installments over eight years. Some companies overpaid their 2017 taxes as a result of Section 965, but were unable to claim a refund of those taxes due to an interaction with the rules for electing installment payments. This provision, which corrects an error in the Tax Cuts and Jobs Act, allows companies to recover the overpayment of taxes paid on the toll charge to help with liquidity during the current crisis.

Section 2209. Restoration of limitation on downward attribution of stock ownership in applying constructive ownership rules

This technical correction addresses the tax treatment of certain foreign subsidiaries resulting from changes made by the Tax Cuts and Jobs Act, which changed the ownership requirements for foreign entities that are subject to U.S. tax. The goal in changing these ownership rules was to target certain abusive transactions. However, the changes had the unintended consequence of subjecting some foreign entities to excessive tax and reporting requirements. The provision clarifies that certain foreign subsidiaries should not be subject to those requirements, which will permit companies to amend their 2018 tax return to free up critical cash for operations and payroll and significantly reduce their tax compliance burdens this year.

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