Category: Roundtable Weekly

Mnuchin: President Supports Sales Tax for Online Purchases; GAO Study Shows States Losing Billions from Tax-Free Sales

Posted on by Trey Jackson

As expectations grow that the Supreme Court will rule on the issue of state and local taxation of internet purchases by this summer, Treasury Secretary Steven Mnuchin recently testified before two congressional committees about President Trump’s support for an online sales tax.

Treasury Secretary Steven Mnuchin recently testified before two congressional committees about President Trump’s support for an online sales tax.

During a hearing before the Senate Banking Committee, Mnuchin addressed taxing online purchases through the Marketplace Fairness Act, stating: “[T]he president fundamentally supports the idea of some type of sales tax across the board … There are aspects of that he likes a lot and he looks forward to working with you and others on it.” (Video of Exchange with Sen. Jon Tester (D-MT), C-Span, Jan. 30) 

At a Feb. 15 House Ways and Means Committee hearing, Mnuchin said the president “does feel strongly” that the U.S. should impose a sales tax on purchases made over the Internet. (Bloomberg, Feb. 15)

The U.S. Government Accountability Office (GAO) released a study in December estimating that state and local governments could have collected an estimated 8 to 13 billion dollars in 2017 if states were given authority to require sales tax collection from all remote sellers. (GAO report, Dec. 18, 2017).  The Roundtable has recommended that sales taxes collected from on-line consumer purchases may provide a reliable source of state and local revenue to help pay for President Trump’s recently proposed infrastructure re-building plan.  (Roundtable Weekly, Jan. 26, 2011.)

The Supreme Court is scheduled to hear oral argument in South Dakota v. Wayfair, Inc., on April 17 to resolve the constitutionality of collecting sales and use taxes that are due on Internet purchases.  The high court is expected to render a decision by the end of June. (Roundtable Weekly, Jan. 12)

The International Council of Shopping Centers, Investment Program Association, Nareit®, and the National Association of REALTORS® will join The Roundtable on an amicus brief to be filed early next month in Wayfair, urging the Supreme Court to overturn a pair of decades-old opinions prohibiting states from imposing sales and use tax collection obligations on web-based, catalog, and other retailers lacking an in-state physical presence.  The upcoming brief will re-iterate many of the points that the real estate coalition set forth in an initial amicus brief filed last November  (Roundtable Weekly, Nov. 3, 2017.)

Policymakers Pledge to Issue Technical Corrections and Guidance to Implement New Tax Law

Posted on by Trey Jackson

Treasury Secretary Steven Mnuchin testified before Senate and House tax-writers this week about implementation of the new tax law – including needed corrections affecting carried interest limitations and a drafting mistake that subjects qualified property improvements to a 39-year recovery period, rather than 15 years.

Secretary Mnuchin testified on tax issues before the Senate Finance Committee on Feb. 14, followed by his appearance before the House Ways and Means Committee on Feb. 15.

Ways and Means Chairman Kevin Brady (R-TX) pledged during a Feb 15 hearing to address errors included in the Tax Cuts and Jobs Act (P.L. 115-97).  Brady stated, “We know that certain parts of this provision are having unintended consequences” and that he was “committed to working with our Ways and Means Members, with Senator Hatch and the Senate Finance Committee, and the Administration and stakeholders to develop the right solution now – one that is thoughtful, carefully crafted, and successful  restoring balanced competition in the marketplace.”  (Brady’s Opening Statement, Feb. 15) 

[Earlier that day, Brady invited input from stakeholders on potential problems and unintended consequences arising from the new tax law. “We expect to develop a punch list of provisions that need to be addressed either administratively or through changes in the code itself,” he said.  (BNA, Feb. 15)] 

During the House hearing, Rep. Jim Renacci (R-OH) explained to Secretary Mnuchin that Ways and Means members are working on a tax reform drafting mistake that should have provided for a 15-year recovery cost-recovery period to qualified property improvements, instead of the 39 year period that was enacted.   

Mnuchin responded to Renacci: “I am aware of the error and it obviously was unintended. We are looking at whether there is anything we can do with regulations. I think it is likely that this is something that may need to be fixed in the bill. We look forward to working with you.” (Ways and Means Committee, Mnuchin’s testimony and hearing video) 

If a focused corrections bill cannot be quickly passed by Congress, policymakers are considering adding a corrections provision to a must-pass spending bill to keep the government funded beyond by March 23.  (Bloomberg Law, Feb. 13) 

Mnunchin also testified during a Feb 14 Senate Finance Committee hearing that Treasury will issue guidance this month regarding new tax laws affecting carried interest. Under the new tax law, investment fund managers and others qualify for carried interest tax treatment after holding assets for three years, instead of one year.  Yet the new law doesn’t apply to S corporations’ carried interest profits. (The Hill, Feb. 14) 

“We will be putting out guidance and regulations to make sure that people can’t abuse the pass-throughs,” Mnuchin testified. “The IRS and [Treasury office of] tax policy intends to send out within the next two weeks guidance that we do believe that taxpayers will not be able to get that loophole by going through [S corporations],” he added.  (Bloomberg, and CQ, Feb. 14) 

In January, The Roundtable wrote to Treasury Secretary Mnuchin  offering several suggestions aimed at ensuring the long-term success of the Tax Cuts and Jobs Act (TCJA).  [Roundtable Letter, Jan. 18]

International Visitor Spending in the U.S. Drops; “Visit U.S.” Coalition Aims to Spur Tourism and Economic Growth

Posted on by Trey Jackson

Spending by international travelers to the U.S. decreased 3.1 percent over the past year, the second consecutive annual drop in 15 years, according to Department of Commerce data released Tuesday.  (U.S. Travel Association, Feb. 7)

Travel Exports vs. All Other Exports  
(U.S. Travel Association)

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As the U.S. hospitality sector is a vital component of the commercial real estate industry – providing significant capital investment, opportunities and infrastructure improvements in local communities throughout the country – The Real Estate Roundtable recently joined 12 other national trade organizations as a member of the “Visit U.S.” Coalition to work with policymakers in reversing the decline. (Roundtable Weekly, Jan. 19).  

The two-year fall-off in international visitor spending confirmed by Commerce data also tracks America’s loss in long-haul market share – a decrease from 13.6 percent in 2015 to 11.9 percent in 2017.  Overall travel volume increased 7.9 percent in the same period – meaning that foreign travelers are opting to visit other countries than the US and spending their money elsewhere. (U.S. Travel Association, Travel Exports vs. All Other Exports, Feb. 2)

“The slide (in international travel to the U.S.) has deprived our economy of an estimated $32 billion in additional spending and 100,000 additional jobs.”

 U.S. Travel Association President and CEO Roger Dow     

“We are certainly concerned about the statistics,” said Craig Kalkut, vice president of government affairs at the American Hotel and Lodging Association (AHLA) – a founding member of the Visit U.S. coalition.  Kalkut added, “It’s important for the hotel industry but also the businesses that surround [and occupy] hotels and the economy overall, so it’s time to take some action.” (Commercial Observer, Feb. 8)

USTA President and CEO Roger Dow stated, “International inbound travel is America’s No. 2 export overall; directly supports more than a million American jobs; and brings in $245 billion a year to our economy. But the U.S. share of the growing global long-haul travel market has been eroding since before the start of the Trump administration … That slide has deprived our economy of an estimated $32 billion in additional spending and 100,000 additional jobs. The good news? The problem is fixable, through balanced messaging and sound policymaking.”  (USTA, International Visitors Are Crucial to President Trump’s Priorities, Feb. 7)

In the coming weeks, Visit U.S. will advance policy recommendations that support its shared objectives with the Trump administration. (Visit U.S., Jan. 16)

House Judiciary Committee Passes Infrastructure Expansion Act to Counter Inequities in “Scaffold Law”

Posted on by Trey Jackson

Legislation aimed at lessening the harsh impact of an antiquated 133 year-old labor “Scaffold Law” – an economic burden on infrastructure projects crossing state lines – passed the House Judiciary Committee on Tuesday.  (Committee Mark-up Video, Jan. 30)

The Jan. 29, 2018 industry coalition letter in support of the Infrastructure Expansion Act (H.R. 3808). 

The Infrastructure Expansion Act of 2017 (H.R. 3808), sponsored by Rep. John Faso (R-NY), passed along party lines by a 16-14 vote.  The Real Estate Roundtable, Associated General Contractors, and 17 U.S. organizations representing the contracting, insurance and real estate sectors urged the committee to pass the bill. (Coalition Letter, Jan. 29) 

The coalition letter provides several examples of transportation projects (such as the Northeast Corridor Gateway Program) that would benefit multiple states and the national economy, yet are hindered by application of the Scaffold Law. 

Courts have interpreted the New York law to subject property owners and contractors to “absolute liability” for slips, falls, and height-related accidents that occur during commonplace painting, cleaning, remodeling, and construction activities.  

Under this standard, any negligence by a worker that may cause an accident or intensify his own injuries is disregarded.  As an example, an inebriated worker who stumbles and falls at a project site would not be held accountable to the extent his intoxicated state caused his own injuries. (Roundtable Weekly, Jan. 19).  As a result, absolute liability under the Scaffold Law has caused premiums for general liability insurance at New York development sites to skyrocket. 

H.R. 3808 would deny federal funding to construction projects that use New York’s “absolute liability” standard for workplace injuries caused by falls. The bill does not diminish or alter Federal or state OSHA obligations, nor does it foreclose “no-fault” workers’ compensation.  

Committee Chairman Goodlatte (R-VA) broadened the bill’s scope to require states use either a “comparative negligence” or “contributory negligence” standard for falls on federally subsidized projects.  In a statement, Goodlatte also offered  detailed reasons explaining why the legislation should be enacted. 

Although the Infrastructure Expansion Act may continue to gain predominantly GOP support in the House, its prospects in the Senate are far more challenging.

The Roundtable Joins “Visit U.S.” Coalition to Spur International Tourism, Domestic Job Creation and Economic Growth

Posted on by Trey Jackson

The Real Estate Roundtable joined 10 national trade organizations as a member of the “Visit U.S.” Coalition, which launched on Wednesday with the goals of spurring job creation and economic growth while reversing a decline in international visitors to the United States.  (Visit U.S., Jan. 16).

According to the U.S. Travel Association, global travel volume to the United States from 2015 to 2017 fell from 13.6 percent to 11.9 percent — the first decline after more than a decade of consistent growth.  The statistics also show that if the U.S. had maintained its 2015 international travel market share, its economy would have gained an additional 4 million international visitors, $32.2 billion in spending and 100,000 jobs. 

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The coalition represents a broad cross-section of industries that have come together to address the recent drop in travel to the U.S. and resulting opportunity cost to the economy and jobs.  According to the U.S. Travel Association, global travel volume to the United States from 2015 to 2017 fell from 13.6 percent to 11.9 percent — the first decline after more than a decade of consistent growth.  The statistics also show that if the U.S. had maintained its 2015 international travel market share, its economy would have gained an additional 4 million international visitors, $32.2 billion in spending and 100,000 jobs. 

“As a vital component of the commercial real estate industry, the U.S. hospitality sector provides significant capital investment, creates enormous job opportunities and encourages infrastructure improvements in local communities throughout the country,” said Roundtable President and CEO Jeffrey DeBoer.  “CRE is the provider of secure spaces where people live and play in the United States, and we welcome the opportunity to work with the Trump Administration and our coalition partners to encourage a positive uptick in international tourism to our cities, towns, destinations and attractions,” added DeBoer. 

Roundtable members were recently briefed on the drop in foreign travel to the United States and the economic ramifications by Katherine Lugar, president and chief executive officer of the American Hotel & Lodging Association (AHLA) — the largest trade association representing the U.S. lodging industry.  (Roundtable Weekly, Oct. 6, 2017) 

AHLA, a founding member of Visit U.S., supports policy initiatives such as reforms that enable safe and secure processing of visitor visas to strengthen business and leisure travel — as well as the H-2B program to provide valuable support for businesses looking to supplement their workforce with temporary seasonal employees when American workers are unavailable. 

During the travel coalition’s launch this week, Lugar said, “Fewer visitors means fewer hotel stays, fewer meals eaten in our restaurants, fewer goods purchased in our retail stores, and fewer visits to our national attractions. It also means fewer American jobs and a loss to our economy. We are committed to working together with the Administration to balance a welcome message with strong security to ensure we don’t fall behind to other countries.” 

U.S. Travel Association President and CEO Roger Dow, another founding member of Visit U.S., added, “America is the best country in the world to visit, but we’re losing the competition for international travelers and the dollars they spend when they come here.  The Visit U.S. Coalition is founded on the principle that we can have strong security but at the same time welcome robust numbers of international business and leisure travelers. We can do both.” 

Left to Right: Roundtable President and CEO Jeffrey DeBoer,   American Hotel & Lodging Association President and CEO  Katherine Lugar , and Roundtable Chairman William C. Rudin (  Rudin Management Company, Inc  .)

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“The U.S. economy is on the upswing, but we can grow even more by encouraging more travel to America,” said U.S. Chamber of Commerce President and CEO Thomas J. Donohue, also part of the coalition. “Travel creates jobs and economic activity across a swath of industries and sectors as people visit the U.S. and spend their time and money with American businesses. The Chamber is proud to join with our partners in the business community to make the case for a renewed focus on travel as a driver of economic growth and American prosperity.”

Media coverage regarding the coalition’s launch includes:

U.S. Supreme Court to Address Marketplace Fairness Issue; Decision Expected by July Regarding Sales Tax Collection on E-Commerce Purchases

Posted on by Trey Jackson

The Supreme Court of the United States (SCOTUS) today agreed to address an issue that has long vexed the retail real estate sector, and deprived states and localities of much-needed tax revenue for infrastructure development and other community needs. The nation’s highest court “granted cert” in South Dakota v. Wayfair, Inc., to resolve the lingering debate over the constitutionality of collecting sales and use taxes that are due on consumer purchases made over the Internet.

  

South Dakota v. Wayfair, Inc.  is the latest judicial vehicle to seek a ruling from the nation’s highest Court to resolve the lingering debate over Internet sales tax collection. The International Council of Shopping Centers, Investment Program Association, Nareit®, and the National Association of REALTORS® joined a November, 2017   amicusbrief ,  above, with The Roundtable.

In Wayfair, the Justices are expected to squarely resolve whether an antiquated legal doctrine known as the “physical presence” test should be overruled.  This test exempts on-line sellers from collecting sales and use taxes under the U.S. Constitution’s Commerce Clause unless they have an actual, physical retail outlet or other footprint in the state where the purchase is made – thus imposing sales tax collection burdens primarily on traditional brick-and-mortar” stores.

A coalition of real estate groups (including The Real Estate Roundtable) filed an amicus curiae brief with SCOTUS last November, urging the Justices to accept the Wayfair case to challenge pre-Internet decisions from 1991 and 1967 (Quill Corp. v. North Dakota, 504 U.S. 298, and National Bellas Hess, Inc. v. Department of Revenue of Illinois, 386 U.S. 753, respectively). .  (See Roundtable Weekly, Nov. 3, 2017.)  This pair of decades-old opinions prohibits states from imposing sales and use tax collection obligations on web-based, catalog, and other retailers lacking an in-state “physical presence.”

“The direct harm that the [physical presence] rule inflicts on brick-and-mortar retail stores in considerable,” the real estate groups wrote in their brief.  “Local businesses struggle and increasingly fail to compete against online retailers that can offer customers identical goods for what is in effect up to a 10 percent discount.”

The amicus brief explains the “cascading effects” that call for the Supreme Court to revisit Quill and Bellas Hess.  Many brick-and-mortar stores “are integral to the social fabric of their communities,” and losing them because Internet retailers have a competitive tax collection advantage “increases unemployment and creates a sense of dislocation among community residents.” 

The outdated “physical presence” rule also causes “lost revenue from sales, property and income taxes” which “threatens the ability of state and local governments to provide much-needed public services” to their communities, the brief maintains.  Research data from The National Conference of State Legislatures and International Council of Shopping Centers shows that nearly 26 billion dollars in state and local sales taxes from online sales went uncollected in 2015.  (NCSL and ICSC, March 2017)

The Supreme Court is likely to hear oral argument in April and render a decision by the end of June.

Now that the case moves to the merits phase, a number of advocacy groups are expected to filed a second round of briefs urging a more modern, national standard from SCOTUS to reflect the purchasing preferences and habits of consumers this century.  (See SCOTUSblog’s Wayfair page.)  Since the 1992 Quill opinion, technological advances are now available to address the complexity of administering an online sales tax.  Amazon, for example, collects and remits sales tax  for consumer transactions in 45 states and the District of Columbia.

With today’s cert grant, additional briefing on the Internet sales tax issue is expected throughout the winter and early spring.  The high Court is likely to hear oral argument in April and render a decision by the end of June, when it traditionally breaks for the summer.   

The International Council of Shopping Centers, Investment Program Association, Nareit®, and the National Association of REALTORS® joined last November’s amicus brief  with The Roundtable.