Capital Gains – Page 2 – The Real Estate Roundtable

Senate to Consider Stopgap Funding Bill as Parties Signal Contrasting Tax Agendas After Mid-Term Elections

Posted on September 16, 2022October 27, 2023 by Trey Jackson

The end of the government’s fiscal year is only two weeks away as congressional leaders continue to work on the scope of a Continuing Resolution (CR) that would extend federal funding into mid-December.

CR Scope

The Senate will move first to determine if other bills will be attached to the stopgap—the final legislative package before November’s mid-term elections. (House Majority Leader Steny Hoyer (D-MD) website, Sept. 12)
The process of moving the funding package has been complicated by a deal reached last month between Senate Majority Leader Charles Schumer (D-NY) and Sen. Joe Manchin (D-WV) to consider permitting rules for energy pipelines and exports. The agreement was reached to secure Manchin’s support for the Inflation Reduction Act. (Roundtable Weekly, Aug. 12 and Manchin’s Outline of Energy Permitting Provisions)
Sens. Schumer and Manchin are working to gather support for permitting legislation, which would require 60 votes to pass the Senate. In the House, a coalition of 77 Democrats recently expressed their disapproval of linking a permitting reform bill to the “must-pass” CR. (Reuters and The Hill, Sept. 13)
House Speaker Nancy Pelosi (D-CA) addressed the possibility of a permit bill yesterday. “We have agreed to bring up a vote, yes. We never agreed on how it would be brought up, whether it be on the CR, or independently or part of something else. We’ll just wait & see what the Senate does,” Pelosi said. (E&E News, Sept. 15)
A CR that expires in December could be followed by consideration of a FY2023 “omni” spending package —with possible extensions of certain tax provisions—during a lame-duck session.

Post-Election Tax Agendas

House Republicans plan to unveil an outline of their “Commitment to America” platform on September 23 in anticipation of the November 8 midterm elections. (Tax Notes, Sept. 15)
Rep. French Hill (R-AR), a member of the GOP Jobs and the Economy task force, told Tax Notes there will be a “skinny version” of the House GOP Platform and a less widely circulated “deep blueprint for legislative work to lay out that first year of Congress.”
Extending portions of the Tax Cuts and Jobs Act past their December 31, 2025 expiration will be at the core of the the House Republican tax plan— including 2017’s tax reductions for individuals, the 20 percent rate cut on pass-through income, and bonus depreciation. (Tax Notes, Sept. 15)
The White House released its own economic blueprint last week, reciting recent accomplishments and signaling tax measures it plans to pursue, including tax increases on capital gains, carried interest, and the step-up in basis of assets at death, as well as a new minimum tax on billionaires’ wealth. (White House news release and blueprint, Sept. 9)
Meanwhile, the Biden administration announced plans on Wednesday to distribute $900 million throughout the country to build electric vehicle infrastructure across 53,000 miles of the national highway system—funding that is part of last year’s bipartisan infrastructure law. (PoliticoPro, Sept. 14)
Transportation Secretary Pete Buttigieg said, “With the first set of approvals we are announcing today, 35 states across the country—with Democratic and Republican governors—will be moving forward to use these funds to install EV chargers at regular, reliable intervals along their highways.” (Approvals and each state’s deployment plan for 2022)

The CR, midterm elections, and the legislative outlook for the lame-duck session will be among the topics of discussion during The Roundtable’s Fall Meeting on Sept. 20-21 in Washington.

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Sens. Schumer and Manchin Agree on Reconciliation Bill With Carried Interest and Energy Efficiency Provisions

Posted on July 30, 2022October 27, 2023 by Trey Jackson

An unexpected agreement announced Wednesday night between Senate Majority Leader Chuck Schumer (D-NY), above right, and Sen. Joe Manchin (D-WV), left, on a $790 billion reconciliation proposal includes $14 billion in increased taxes on carried interest and a 15% corporate minimum tax—in addition to $369 billion in climate spending that affects “clean energy” measures important to commercial real estate.

Senate Democrats are hoping to pass some version of the Schumer-Manchin language on a party-line vote before the upper chamber begins its summer recess on Aug. 8. (Senate Democrats’ joint statement and one-page bill summary, July 27 | Committee for a Responsible Federal Budget, July 28)

Legislative Details

Today, The Real Estate Roundtable held an all-member virtual town hall to discuss major provisions within the 725-page Inflation Reduction Act (IRA) of 2022. The Roundtable is working with its policy advisory committees and national real estate organization partners to assess how details in the bill language could impact CRE.
Real Estate Roundtable President Jeffrey DeBoer stated, “The Roundtable is engaged with policymakers and Capitol Hill staff on the potential impact of the proposed bill on real estate capital formation, economic growth, clean energy investments, and affordable housing development. The industry is working together to mitigate any negative consequences for CRE before policymakers hold an eventual vote on a final bill.”

Taxes & Clean Energy

The IRA’s largest tax increase is a new 15% corporate minimum tax on businesses with profits over $1B whose reported book income exceeds reported taxable income. The measure is estimated to raise $313B. The package also includes protections that would preserve the value of the low-income housing tax credit for investors (typically large banks) that use the credit to reduce their effective tax rate.
The smallest tax increase would raise $14B in revenue by extending the capital gains holding period requirement for carried interest from 3 years to 5 years, although there is an exemption for real estate. Additionally, there are technical reforms to the holding period rules for measuring the 3- or 5-year holding period. (Deloitte Tax News & Views, July 29)
The carried interest holding period change includes a real estate exception for gain associated with assets used in a real property trade or business. The language in the IRA on carried interest is identical to text in the House Ways and Means Committee’s previous reconciliation bill last year—language that was dropped from the version that passed the full House. (Roundtable Weekly, Sept. 17, 2021)
The Schumer-Manchin agreement also proposes significant reforms to Section 179D—the tax code’s main provision to incentivize energy efficient commercial buildings. The 179D reforms are geared to encourage more existing building “retrofits” although maximum incentives amounts depend on compliance with heightened wage and labor standards.
Tax incentives are also included to encourage investments in solar panels, energy storage, and EV charging stations. (See Summary of the bill’s Energy Security and Climate Change Investments)

Timeline

There are several challenges to the Senate Democrats’ timeline for passage of the bill in early August.
Senate Democrats need all 50 members of their caucus present for an eventual budget reconciliation vote, along with Vice President Kamala Harris to break an anticipated tie with 50 Republicans. Yet Covid-19 infections have caused recent absences. (The Hill, July 28)
The bill was sent to Senate Parliamentarian Elizabeth MacDonough to see if it conforms with reconciliation budget rules, a process that will spill over into next week. (BGov, July 29)
Arizona Democratic Senator Kyrsten Sinema is a key centrist vote, considering she has long opposed changes to the taxation of carried interest. Sinema’s spokesperson Hannah Hurley said yesterday that the Senator is “reviewing the text and will need to review what comes out of the parliamentarian process.” (BGov, July 29)

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Sen. Manchin Narrows Scope of Possible Reconciliation Bill While Waiting for More Inflation Data

Posted on July 16, 2022October 27, 2023 by Trey Jackson

Sen. Joe Manchin (D-WV), a key centrist in Democrats’ ongoing efforts to pass a party-line budget reconciliation bill, said this week he would not move forward on an economic package that contains climate provisions or tax increases, upending weeks of negotiations with Senate Majority Leader Chuck Schumer (D-NY). Manchin, above, added he would support a limited measure this month aimed at reducing pharmaceutical prices and extending federal subsidies for buying health care coverage. (The Washington Post, July 14, Bloomberg, July 15 and Roundtable Weekly, June 17)

Inflation & Timelines

Manchin explained his position during a West Virginia MetroNews interview this morning: “I said, Chuck [Schumer], until we see the July inflation figures, until we see the July Federal Reserve rates, interest rates, then let’s wait until that comes out so we know that we were going down the path that won’t be inflammatory to add more to inflation. Inflation is absolutely killing many, many people.” (Full interview and The Hill, July 15)
The July Consumer Price Index is scheduled for release Aug. 10, after surging to an annual inflation rate of 9.1% in June. (U.S. Bureau of Labor Statistics, July 13)
Democrats are pushing to pass a bill before the Congressional recess begins on Aug. 8. If any agreement is reached, a bill would have to be drafted, scored, and debated, which could take several weeks as the midterm elections loom. The underlying budget reconciliation instructions authorizing a filibuster-proof bill do not expire until September 30. (The Washington Post, July 15)
The Roundtable on July 13 commented on the evolving reconciliation talks on its Twitter feed, “As policy negotiations continue, we are working to ensure that any scaled-back bill doesn’t include anti-growth, anti-real estate tax hikes such as repeal of like-kind exchanges; increased capital gain tax rates; or revisions to taxation of pass-through entities.”

The only option for Democrats to pass a reconciliation bill this month may be reduced to a limited version focused on prescription drug pricing and a two-year extension of Affordable Care Act funding to prevent major insurance premium hikes. The prescription drug legislation should raise more than sufficient revenue ($288 billion) to pay for a temporary extension of the health care insurance subsidies. (CNBC, July 15)

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New Research Details Trends in Like-Kind Exchanges and Impact on US Economy

Posted on July 1, 2022October 27, 2023 by Trey Jackson

New research highlights emerging trends related to real estate like-kind exchanges (LKEs) and their growing importance to the US economy. The report by EY economist and former Treasury Deputy Assistant Secretary for Tax Analysis Robert Carroll was presented to The Real Estate Roundtable’s Tax Policy Advisory Committee (TPAC), above, on June 17. EY partnered with the Real Estate Like-Kind Exchange Coalition, which includes The Roundtable, to produce the updated LKE report with 2021 data. (TPAC slide presentation, June 17)

LKE Data and Trends

LKEs under section 1031 of the tax code allow businesses to defer capital gains tax on the disposition of real estate if the gain is used to acquire replacement property of like kind within six months.
The EY report—“Economic Contribution of the Like-Kind Exchange Rules to the US economy in 2021: An Update”—updates EY’s prior research that used LKE data from 2019.
The survey found that the dollar volume of like-kind exchange activity and number of transactions increased by 70% between 2019 and 2021. The increase was identified by a survey of qualified intermediaries as the US economy recovered from the COVID recession.
According to the author, the increase in LKE activity “is likely due, in part, to the transition of many qualified real property assets to new or modified uses to meet post-pandemic business models and tenant needs, a trend that may continue, at least to some degree, for the next several years.”

LKE Economic Impact

The EY report estimates the impact of like-kind exchange rules on the cost of capital and assesses the likely impact of section 1031 on investment decisions and investment levels. EY’s significant findings include:
- Job growth and labor income
  Overall, economic activity generated by Section 1031 exchanges in 2021 supported 976,000 jobs and $48.6 billion of labor income.
- Gross Domestic Product
  Like-kind exchanges generated $97.4 billion in value added in the United States in 2021. “Value added” measures a sector’s or industry’s contribution to the production of final goods and services.
- Federal, state, and local tax revenue
  Taxpayers engaged in like-kind exchanges—along with suppliers and related consumer spending—were estimated to generate approximately $13.1 billion in federal, state, and local taxes during 2021.

The EY research builds on the groundbreaking academic research on LKEs commissioned by The Roundtable and other members of the Real Estate Like-Kind Exchange Coalition at the height of the tax reform debate. This work by Professors David Ling (Univ. Fla.) and Milena Petrova (Syracuse U.) was subsequently published in 2020 in the peer-reviewed Journal of Real Estate Literature here and here.

The Roundtable’s Tax Policy Advisory Committee (TPAC) will continue working to raise awareness of the role that like-kind exchanges play in supporting the health of the US economy and the stability of real estate markets.

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Inflation, National Policy Agenda, and CRE Market Conditions Focus of Roundtable Annual Meeting

Posted on June 18, 2022October 27, 2023 by Trey Jackson

The Roundtable’s 2022 Annual Meeting in Washington, DC this week focused on key policy issues affecting the commercial real estate industry—including inflation and interest rates; prospects for a scaled-back Build Back Better (BBB) Act; proposed climate risk disclosure rules; and a new industry Equity, Diversity, and Inclusion initiative.

Policy Focus

Roundtable President and CEO Jeffrey D. DeBoer, left, launched the June 16 business meeting with an overview of The Roundtable’s Policy Agenda and newly released 2022 Annual Report, Building a More Resilient and Dynamic Future. Annual Meeting guests included:
- Sen. Joe Manchin (D-WV)
  Sen. Manchin, above right, discussed the benefits of a bipartisan approach to legislation and the role of inflation in considering any additional spending bills this year.
- Sen. John Thune (R-SD)
  Sen. Thune spoke about supply chain issues, aid for Ukraine, the Fed and monetary policy, and the upcoming elections.
- Rep. Abigail Spanberger (D-VA)
  Rep. Spanberger addressed efforts to produce common-sense gun policy, lower inflationary costs for families and policymaking in the House during the upcoming lame duck session.
- Jim VandeHeiAxios and Politico co-founder and CEO discussed the current political environment, potential challengers to President Biden, the upcoming congressional elections, and the advantages of delivering news and analysis about today’s policy landscape in an efficient, “smart brevity” style.
- Jonathan KarlABC New’s Chief Washington Correspondent spoke about the current political environment and the midterm elections.

Supplier Diversity & CRE

The Annual Meeting also included an initiative of The Roundtable’s Equity, Diversity, and Inclusion (ED&I) Committee, chaired by Jeff T. Blau (Chief Executive Officer and a partner of Related Companies).
A proposed two-year pilot program was discussed with SupplierGATEWAY—a firm that assists companies interested in hiring Minority- and Women-Business Enterprises (MWBEs) as contractors, service providers, JV partners, and other “vendors” in their “supply chains.” (Photo: SupplierGATEWAY’s Rock Irvin, left, Chief Commercial Officer, with Adenuga Solaru, Chief Executive Officer)
The proposed online SupplierGATEWAY portal would support CRE firms interested in accessing a broad and centralized MWBE vendor database, posting hiring opportunities for those contractors, and utilizing tools to assist with corporate ESG reports.
SupplierGATEWAY’s executives demonstrated a CRE-specific “prototype” of their MWBE management portal that could be available by the fall for companies who may subscribe to the service.

For more information regarding The Roundtable’s supplier diversity initiative, contact Roundtable Senior Vice President and Counsel, Duane Desiderio (ddesiderio@rer.org).

CRE Markets & Policy Advisory Committees

The Roundtable’s Policy Advisory Committee leadership discussed their policy issue activities during the business meeting and referred to a Policy Issues Toolkit for background information on how key issues impact commercial real estate (see Executive Summary). Each committee met in conjunction with the Annual Meeting to address the following:
- The Sustainability Policy Advisory Committee (SPAC) focused on a recent Securities and Exchange Commission (SEC) proposed rule that would require registered companies to report on climate-related financial risks. The Roundtable submitted a comment letter to the SEC last week on the proposed rules. (Roundtable Weekly, June 10 and Roundtable comments | SPAC Agenda).
- The Research and Real Estate Capital Policy Advisory Committees (RECPAC) met jointly with Rep. Rep. French Hill (R-AR) to discuss the congressional legislative agenda and capital markets from his perspective as a member of the House Financial Services Committee and Ranking Member of its Subcommittee on Housing, Community Development and Insurance. (Joint RECPAC-Research Agenda)
- The Tax Policy Advisory Committee (TPAC) drilled down on a Senate proposal to tax unrealized gains associated with appreciated assets, partnership tax rules, like-kind exchanges, Opportunity Zone incentives, and energy-efficiency tax provisions. (TPAC Agenda)
- The Homeland Security Task Force (HSTF) and Risk Management Working Group (RMWG) met jointly to discuss current threat issues, with presentations by Kevin Vorndran, Deputy Assistant Director, Counterterrorism Division, FBI and Nitin Natarajan, Deputy Director of the Cybersecurity and Infrastructure Security Agency (CISA). (Joint HSTF-RMWG Agenda)

Next on The Roundtable’s calendar is the Sept. 20-21 Fall Meeting (Roundtable-level members only).

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Senate Republicans Propose Middle-Class Tax Relief, Financed by SALT Cap Extension

Posted on June 18, 2022October 27, 2023 by Trey Jackson

Congressional Republicans this week proposed legislative measures—aimed at helping middle-class savers and spurring investment without further increasing inflation—as a precursor of GOP economic policies that may be promoted during the fall’s midterm elections. Senate and House announcements on inflation followed last week’s Labor Department report showing the consumer price index reached 8.6 percent in May. In response, the Federal Reserve raised interest rates by 75 basis points, its largest hike since 1994. (Wall Street Journal and Tax Notes, June 14 | CNBC, June 15)

Senate GOP Proposal

This week, Sens. Chuck Grassley (R-IA), John Barrasso (R-WY), Steve Daines (R-MT), and James Lankford (R-OK) introduced the Middle-Class Savings and Investment Act. The legislation aims to help the middle class through tax cuts and savings incentives, paid for by extending the current $10,000 cap on the deduction for state and local taxes. (Sen. Grassley news release, June 14)

The Republican-introduced bill would:
- Expand the Zero Rate Bracket for Capital Gains and Dividend IncomeThe legislation would increase the size of the zero percent tax bracket for long-term capital gains and qualified dividends. Under the proposal, a married couple with income under $178,000 would not owe tax on capital gains and dividend income.
- Provide Relief from the Net Investment Tax for a Married CoupleThe legislation would exempt the first $400,000 earned by a married couple from the 3.8 percent net investment income tax that otherwise applies to capital gains, dividends, and passive rental income. Currently, the first $200,000 earned by an individual and $250,000 earned by a married couple is exempt from the tax.
- Create and Expand Tax Relief for Interest Income and Retirement SavingsThe legislation would allow individuals to exclude up to $300 ($600 if married) of interest income from taxation. Additionally, the bill would expand the tax credit that encourages low-income taxpayers to contribute to a qualified retirement account. (Backgrounder on the Senate legislation)
The bill would be paid for by extending the current $10,000 cap on the deductibility of state and local taxes for three years, or however long is needed. The deduction is scheduled to expire at the end of 2025.

House Republican Outline

On June 14, House Ways and Means Committee Republicans released a one-page document outlining a six-point plan to combat inflation. The GOP calls for repurposing $170 billion in unspent pandemic federal aid for deficit reduction while pursuing permanent tax relief. The list of principles also urges policymakers to reject the Biden administration’s proposed overhaul of the tax code affecting corporations and wealthy individuals. (BGov, June 15)
The proposals to fight inflation by congressional Republicans seek to provide a contrast to the approach by Democrats, which includes cutting prescription drug costs and increasing taxes on oil company profits. (PoliticoPro, June 14)

The Roundtable’s Tax Policy Advisory Committee (TPAC) met today in conjunction with The Roundtable’s 2022 Annual Meeting to discuss policy issues affecting the taxation of commercial real estate. (See story above).

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Coalition Requests Changes to Treasury Tax Regulations Affecting Outbound Foreign Real Estate Investment

Posted on April 30, 2022October 27, 2023 by Trey Jackson

IRS Building The Real Estate Roundtable and four other national trade groups submitted recommendations to modify proposed Treasury regulations regarding partnerships and other pass-through entities that own direct or indirect interests in a passive foreign investment company (PFIC). (Read PFIC comment letter, April 25)

Passive Foreign Investment Companies and Proposed Regulations

A PFIC is a foreign corporation that derives a significant share of its income from passive sources or primarily owns assets that are held for the production of passive income, including capital gains, interest, dividends and rent. PFICs commonly arise when structuring investment funds and pooling capital to invest in foreign real estate.

Special U.S. tax rules apply to PFIC income. The rules generally accelerate the recognition of PFIC income by PFIC shareholders, or impose an interest charge if the income is deferred. PFIC shareholders can elect which tax regime to apply.

Recently proposed Treasury regulations would require any U.S. partner of a partnership that directly or indirectly owns a PFIC to make PFIC-related tax elections at the individual partner level, in addition to other changes.

Recommended Changes

PFIC Coalition logos

The April 25 coalition letter suggests the proposed rules would result in an exponential increase in the number of separate PFIC filings, greater administrative burdens and a higher cost of compliance. The rules would also lead to inadvertent failures to file elections since small investors are less well-versed in the PFIC rules than the investment partnerships and their advisors.

The letter also urges the IRS to allow partnerships to make PFIC elections at the entity level for all partners, including on behalf of indirect partners who own their interest through an upper-tier partnership. A partnership could make the election for a partner through a partner’s grant of a power of attorney to the general partner of the partnership. An implicit delegation of this authority (e.g., the authority in the partnership agreement to file tax returns) would be sufficient.

“If Treasury incorporates these changes,” said Real Estate Roundtable President and CEO Jeffrey DeBoer, “the end result will be less friction and expense for real estate funds as they raise and deploy capital for productive real estate investment.”

Other signatories of the letter include the Alternative Investment Management Association, the American Investment Council, the Managed Funds Association, and the S Corporation Association.

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Roundtable CEO Questions Wisdom of Administration’s Proposed Carried Interest Tax Increase

Posted on April 15, 2022October 27, 2023 by Trey Jackson

This week, Real Estate Roundtable President and CEO Jeffrey DeBoer, above, challenged the Administration’s recently proposed budget, which would recharacterize nearly all real estate carried interest as ordinary income, in Bisnow, a prominent commercial real estate media outlet. (Bisnow, April 13)

Taxing Carried Interest as Ordinary Income

President Biden’s budget includes tax proposals recycled from last year that failed to pass congressional negotiations, including taxing long-term capital gains at ordinary income rates – and taxing carried interest in real estate partnerships as ordinary income. (Roundtable Weekly, April 1)

In Bisnow’s “Taxing Carried Interest as Ordinary Income: The Idea that Never Dies, but Never Becomes Law Either,” DeBoer noted, “The president’s carried interest budget proposal would, for the first time, limit capital gain tax treatment to the return on cash and cash-equivalent investment. This would ignore the reality that real estate owners and developers bear significant financial risks beyond their capital contribution.”
DeBoer added, “The capital gains tax incentive has always recognized and rewarded other factors beyond just invested cash, including the assumption of construction, litigation and market risk, as well as the sweat equity associated with owning investment real estate.“
Targeting tax evaders and illegal transactions is appropriate, DeBoer noted, but he emphasized that penalizing entrepreneurship and discouraging noncash risk-taking by recharacterizing all carried interest as ordinary income would be a mistake.
Proposals to recharacterize carried interest as ordinary income have been introduced in Congress perennially since 2007. The Tax Cuts and Jobs Act of 2017 included a provision extending the holding period requirement from one to three years for carried interest to qualify for the reduced long-term capital gains tax rate.

Carried interest and other tax issues outlined in The Roundtable’s recently released 2022 Policy Agenda will be discussed during the April 25-26 Spring Meeting (Roundtable-level members only) in Washington DC.

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Legislators Introduce Bipartisan Bill to Reform Opportunity Zone Incentives

Posted on April 8, 2022November 4, 2024 by Abigail Grenadier

Members of Congress introduced bipartisan, bicameral legislation yesterday to update and amend the Opportunity Zones (OZs) program. If enacted, the bill would extend expired OZ benefits, sunset certain high-income OZ census tracts, and apply additional information reporting requirements for opportunity funds and their investors. (Congressional news release, April 7)

OZ Reforms

The Opportunity Zones Transparency, Extension, and Improvement Act was introduced in the Senate by Tim Scott (R-SC), above, and Cory Booker (D-NJ) – and in the House by Ron Kind (D-WI) and Mike Kelly (R-PA). (Full text of the legislation | One-page summary | Section by Section).
The bill includes a Roundtable-requested, 2-year extension of the initial capital gains deferral period for prior gain that is rolled into an opportunity fund by an investor. (Roundtable Comment letters: Dec. 21, 2021 and May 14, 2020)
The 2-year extension, from the end of 2026 until the end of 2028, will allow OZ investors to benefit from a partial step-up in basis that reduces their tax liability on their prior gain if their opportunity fund investment is maintained for at least 5 years. The extension would help OZs continue attracting capital and investment that is boosting job growth and supporting the local tax base in these communities.
Other provisions include a detailed process for sunsetting certain high-income census tracts from the OZ program; new information reporting rules for Opportunity Funds and investors; and creation of a $1 billion State and Community Dynamism Fund to support OZ projects and businesses in underserved communities.

Census tracts subject to the sunset provision include those with a median family income that exceeds 130 percent of the national median. The sunset includes transition rules that grandfather in existing and planned investments.
The information reporting proposals were previously introduced by Senator Scott in 2019. They aim to improve program transparency and facilitate improved tracking of the OZ investment outcomes in the designated communities. The Roundtable and other real estate organizations previously encouraged Congress to adopt enhanced OZ information reporting, data collection, and transparency measures. (Roundtable Comment letter: Dec. 21, 2021)
In the short time since their enactment, Opportunity Zones have created jobs and spurred billions of dollars in new investment in economically struggling communities. The Roundtable worked closely with Members of Congress and the Treasury Department to ensure OZ implementing regulations would facilitate the program’s success, and has long-supported OZ legislation that could spur greater investment, promote capital formation and bolster job growth in economically disadvantaged communities. (Roundtable Weekly: May 15, 2020 and (Roundtable Comment letter: Dec. 21, 2021)

In the current legislative environment, prospects for the new bill are uncertain, but it will likely be the basis for any serious consideration of OZ changes going forward.

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Biden Administration Submits FY2023 Budget to Congress, Proposes Tax and Other Measures Impacting Real Estate

Posted on April 1, 2022October 27, 2023 by Trey Jackson

The Biden administration on Monday released its $5.8 trillion FY2023 Budget, a package of spending, tax, and policy proposals that will face extensive congressional scrutiny and revisions over the coming months. The March 28 budget was accompanied by the Treasury Department’s “Greenbook,” which details the Administration’s $2.5 trillion in tax increases on corporations, high-earning households, and certain business activities, including real estate investment. (New York Times and BGov, March 29)

Billionaire Minimum Income Tax

The new budget proposes to tax the wealthiest households on their unrealized capital gains, including real estate. The so-called “Billionaire minimum income tax” would impose a minimum levy of 20 percent on a comprehensive tax base that includes both realized income and the unrealized annual appreciation of a taxpayer’s assets.
The new tax would apply to future appreciation of assets and all unrealized, built-in gains at the time of enactment. The tax on pre-enactment, built-in gains would be collected over a 9-year transition period.
Although marketed as a tax on “billionaires,” the proposal would apply to any taxpayer with $100 million or more in wealth. This initial high threshold arguably represents a first step towards a wealth tax regime with much broader application. The original income tax applied to the top 1/3 of one percent of the U.S. population and now applies to over 150 million American households.
In certain cases, holders of illiquid assets like real estate could elect to defer the minimum tax until the property is sold, provided they pay an additional charge.
The budget leaves many of the most difficult questions unanswered, including:
- How would the tax survive a constitutional challenge on the grounds that direct taxes must be apportioned among the states by population?
- Why would taxpayers continue to make patient, long-term investments, knowing that they could be taxed before the investment generates cash income?
- Will much of the tax burden fall on noneconomic inflationary increases in asset values?
- How will the IRS administer the tax without building a highly intrusive compliance system that is based on subjective valuation measures?

Another new revenue proposal in the budget relates is to tax depreciation recapture at ordinary income rates. The provision generally would treat gain on real estate held for more than one year as ordinary income to the extent of cumulative depreciation deductions taken in tax years beginning after 2022. Depreciation recapture is currently taxed at a rate of 25 percent.

The White House budget also includes tax proposals recycled from last year that failed to pass congressional budget negotiations, including:
- repealing the deferral of gain from real estate like-kind exchanges;
- taxing long-term capital gains at ordinary income rates;
- taxing carried interest in real estate partnerships as ordinary income; and
- treating transfers of property at death as realization events subject to capital gains tax.

Immediate Congressional Pushback

The spending and revenue proposals faced immediate pushback on Capitol Hill by Republicans and Democrats, including Sen. Joe Manchin (D-WV), a key centrist who stated he opposes President Biden’s 20% minimum tax on unrealized capital gains for households worth at least $100 million. (CQ News, March 29)
Manchin told The Hill, “You can’t tax something that’s not earned. Earned income is what we’re based on. Everybody has to pay their fair share, that’s for sure. But unrealized gains is not the way to do it, as far as I’m concerned.”
Manchin also recently stated he is open to negotiating some limited remnants of the defunct Build Back Better (BBB) Act, with a focus on energy-related incentives, prescription drug costs ,and deficit reduction. (Business Insider, March 24)

Other Measures Directly Affecting Real Estate

Biden budget proposals impacting other aspects of The Roundtable’s 2022 Policy Agenda include:
- Energy and Climate – the president’s budget request outlines $44.9 billion for increased spending on several climate-related initiatives, yet does not address specific clean energy provisions that were part of last year’s BBB bill. Instead, a “deficit neutral reserve fund” is noted in the FY23 budget to accommodate a potential future deal on clean energy legislation with Democratic Sens. Joe Manchin (D-W.Va.) and Kyrsten Sinema (D-AZ). (E&E News, March 28 and Axios Generate, March 29)
- Affordable Housing – the FY23 budget seeks to ease the nation’s affordable housing shortage with $50 billion in federal funding for housing construction and supply, including $35 billion for state and local housing finance agencies. (PoliticoPro, March 28)
- SEC Reporting Requirements – The Securities and Exchange Commission would receive $2.15 billion in the FY2023 budget proposal, an 11.4% increase from FY2021 (BGOV, March 28). The SEC has ramped up its activity recently with proposed rules on reporting requirements for investment advisers, climate risks and cybersecurity incidents that may have significant impacts for the real estate industry.

The release of President Biden’s second budget launches the annual congressional appropriations process, which aims to fully fund the FY23 government budget starting Oct. 1. The prospects for certain tax increase proposals before the Nov. 8 mid-term elections are highly uncertain. (Politico, March 28 – “Here’s what’s in Biden’s $5.8 trillion budget proposal – and what’s next”)

Issues outlined in The Roundtable’s recently released 2022 Policy Agenda in the areas of tax, climate, capital and credit and cybersecurity will be discussed during the April 25-26 Spring Meeting (Roundtable-level members only) in Washington DC.

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