The Republican tax bill being negotiated this week is like a Sudoku puzzle: daunting to novices, but in the hands of an experienced master, a simple case of plugging in numbers. The opportunities for gaming the new rules will make tax lawyers unspeakably rich for the rest of time, finding endless opportunities to shelter, transform, or reassign income to lower their clients’ payments. And there’s another group poised to get in on the tax loophole fun: state governments that, in a few simple steps, can and probably will nullify the biggest sources of revenue in the bill.
All of this fits with a longstanding conservative project: Starve the government of taxes, and use that as a rationale to slash social spending. This would achieve their goal of re-channeling government benefits from the working poor, who require safety net assistance, to oligarchic holders of dynastic wealth. Considered in this light, one wonders whether the hastily drafted, loophole-ridden tax plan was purposely built as a leaky boat.
In a research paper published last week, “The Games They Will Play: Tax Games, Roadblocks, and Glitches Under the New Legislation,” 13 tax scholars explained how wealthy Americans can work the tax bill for further advantage. Because the business tax rate, both for corporations and “pass-through” businesses (like neighborhood stores or partnerships), would be so much lower than the income tax rate, it gives people incentives to essentially become businesses. “To achieve the tax savings, no longer be an employee,” the paper’s authors wrote, “instead be an owner.”
For example, people could push their salaries through corporations they set up, or invest through them, sheltering earnings in a low-tax vehicle. It’s mainly a strategy for the rich, since the poor need their salaries to—well, live on. This can work with pass-throughs as well; an employee taking salary from a company will take home less than an independent contractor. There are supposed to be restrictions on “service providers” in law firms or financial companies from pass-through benefits, but they are easily evaded. Lawyers working for a firm can characterize themselves as “associates” in a pass-through business that the firm contracts for services. Associates in the pass-through can then take up to $500,000 in earnings at the lower rate.
The sneaky side benefit for corporations here is that they don’t have to provide benefits to an independent contractor, like they do a salaried employee. The tax bill forces everyone onto solitary islands for the purposes of tax strategy, but paid time off, holidays, sick days, and even health benefits could get lost in the exchange. This relieves corporations, which already get their tax rate reduced from 35 percent to 20 percent, from having to pay those benefit costs.
States can use similar tax avoidance to benefit constituents. For example, one of the biggest revenue-raisers in the bill is the repeal of the tax deduction for state and local income taxes (SALT). This disproportionately affects high-tax blue states that provide more services to their citizens, like New York and California. But Daniel Hemel, an associate professor at the University of Chicago, explained how states can get around SALT repeal.
Under the bill, employers can still deduct state and local payroll taxes. So states could just re-classify state income taxes as employer-side payroll taxes. Let’s say you earn $100 from a company in a state with a 5 percent income tax. Under current law, you would take home $95. But if the state shifted to an employer payroll tax, you would be paid your $95 without any state income taxes, and your employer would pay the $5 to the state. But the employer would get to deduct that from its federal taxes, canceling out the cost. There’s no difference for anyone, except that SALT repeal has vanished for wage income.
California is already looking at this workaround. The Joint Committee on Taxation estimates that SALT repeal would raise $829 billion in revenue; with one weird trick, much of that money disappears.
States have also explored ways to preserve the individual health insurance mandate, another revenue source in the bill. Some of the ideas include automatic enrollment for those eligible, a “continuous coverage” requirement that penalized those who dropped out of insurance with higher premiums later, or simply a state-level version of the mandate. These options would prevent the expected spike in insurance premiums and the increase in the uninsured. It would also reduce the $338 billion in expected federal savings, mostly because the government would still have to pay subsidies for those who don’t lose coverage.
There were certainly a host of drafting errors, late-night oversights, and flat-out mistakes in the House and Senate versions of the tax bill. Lawmakers made the corporate tax rate and the corporate alternative minimum tax the same number, effectively nullifying dozens of corporate tax credits. They built in odd cliffs that will give some high-earners marginal tax rates of 85 percent or even over 100 percent in some cases. They created an investment income standard that will deeply harm small investors.
All of these will lead to more gaming to avoid pitfalls. The research paper highlights some examples. A provision that encourages sales of products abroad could lead to “round-tripping,” where a company sells a product overseas to earn low-tax export income, only to have the product shipped right back. A one-year delay in the change to the corporate tax rate will lead companies to write off costs in high-tax 2018, or to buy equipment in 2018 and sell it in 2019, taking advantage of the rate change. “The wealthy and well-advised will benefit disproportionately from these errors of oversight and haste,” write the tax scholars.
While some problems arose out of oversights, I have to wonder if others were intentional. The less revenue the bill creates, the more Republicans can use that rhetorically to moan about the deficit and push for austerity. It’s not like anyone’s eager to fix the many glitches: The goal is to finish reconciling the House and Senate bills by Friday. And as Politico reported on Monday, “The Trump administration and Republicans in Congress are hoping to make the most sweeping changes to federal safety net programs in a generation, using legislation and executive actions to target recipients of food stamps, Medicaid and housing benefits.”
In this sense, a badly botched tax bill helps conservatives. They don’t want the government to be perceived as being flush with cash. They want as much money to leak out as possible—and they know that only the well-to-do can afford the accountants necessary to take maximum advantage of the tax laws. Subsequently, they respond by demanding cuts to social spending. The result is a huge transfer of wealth, from the poor to the rich. That’s the real game here.