Tax Notes Today International Editor in Chief David D. Stewart talks with Tax Notes reporters Jonathan Curry and Alexis Gravely about the tax policies proposed by President Trump and Democratic presidential candidate Joe Biden.
This post has been edited for length and clarity.
David Stewart: Welcome to the podcast. I'm David Stewart, editor in chief of Tax Notes Today International. This week: the election edition. The Republican and Democratic parties have chosen President Donald Trump and Vice President Joe Biden as their respective nominees for the 2020 election. In just two months, the American people will have their say on who will be president for the next four years.
We decided that now is a good time to look at the two candidates' tax plans. Here to talk about them are Tax Notes reporters Jonathan Curry and Alexis Gravely. Jonathan and Alexis, welcome back to the podcast.
Jonathan Curry: Thanks Dave. Always good to be here.
Alexis Gravely: Thanks for having me.
David Stewart: Jonathan, before we get a look at the policies that are proposed, could you tell us a bit about some of the major policy changes that have happened during the Trump administration?
Jonathan Curry: Sure. I'll take you down a little trip on memory lane here. For President Trump, it all centers on the Tax Cuts and Jobs Act, the TCJA that was enacted in 2017. I think it's kind of fun to remember where that one started. If you think back to the 2016 campaign, Trump campaigned on huge tax cuts, like ludicrously huge tax cuts.
The Tax Foundation pegged the 10-year cost of the plan that Trump had initially to around $12 trillion. Obviously that got whittled down a bit in the subsequent months, but clearly Trump has some pretty ambitious requests. I remember one of them was a 15 percent corporate tax rate, coming down from 35 percent. Ultimately they met in the middle at 21 percent, but at the time that was a pretty big ask.
As the TCJA was being developed, much of the time was spent trying to square Trump's desire for these extravagant tax cuts with a revenue neutral tax reform, which is the gold standard of what tax reform should be. In the end, Republicans ditched that goal of revenue neutrality. They instead went with a deficit increasing tax plan that was ultimately scored at around $1.9 trillion.
It's been interesting to see how the TCJA has played out politically since then. It's obviously a huge deal legislatively, and it was the biggest change clearly to the tax code in a whole generation. But it hasn't necessarily been a huge political win in the White House. For a while, the White House tried to play up the idea of bonuses that were linked to the tax cuts that corporations were dishing out. But even that petered out.
The Democrats, of course, painted the TCJA as kind of a tax giveaway to the rich and corporations with just a small pittance left for the working class men and women of this country.
It hasn't really been a home run, but it definitely comes up in campaign rallies. Any time Trump goes out on the stump, you'll hear him reference, "I cut your taxes. I lowered taxes." Plus he paints Democrats as, "Hey, you know, they're going to raise your taxes." It's not really the big issue that was really going to sell the Republican ticket this year.
David Stewart: Turning to a major issue over the last six months: the coronavirus pandemic. There's been some tax changes related to that. Can you tell us about this executive memorandum signed by the president recently?
Jonathan Curry: Sure. Early in March, Congress passed the Family First Coronavirus Response Act. That was the first bill to come around for providing coronavirus relief. That one created refundable tax credits to reimburse employers for the cost of providing paid sick and family leave if it was related to the coronavirus.
The big one, of course, came later that month: the Coronavirus Aid, Recovery, and Economic Security Act, also known as the CARES Act. There's a lot of things involved in that. Direct payments were distributed by the IRS. There was the employee retention tax credit, and the option for employers to defer their portion of payroll taxes, so that they could defer for the rest of this year and then pay half of it back in 2021 and half back in 2022. The big one was the Paycheck Protection Program. That was created to enable businesses that are affected by the coronavirus [to] keep paying their workers, propping these businesses up with these low-interest loans that under the right circumstances could either be partially or completely forgiven.
They also tacked on some smaller individual relief provisions, like a measly $300 above-the-line charitable deduction for this year that I don't think really anyone thinks is going to move the line on anything. There was some also retirement tax tweaks. Things like allowing folks to tap into their 401(k)s early as emergency funds without being penalized for that and so forth.
But, as you mentioned, the hot topic is this enigmatic payroll tax memo. I love this thing, frankly. It's just so fascinating to report on. There's a lot of background here. Can I get into that?
David Stewart: Oh, absolutely.
Jonathan Curry: President Trump has wanted a payroll tax cut of some sort pretty much since the beginning of time. It really started last summer. He wanted a payroll tax cut and went back and forth over the course of a few weeks saying, "Hey, I'm interested in this. Maybe you want to do this and push for it." Then he just dropped it. But it was a way at the time to give the economy a little jolt.
As soon as the pandemic hit, the first thing President Trump says is, "Hey, let's get this payroll tax cut going again." Congress, however, has not been very interested in this. They rejected including it in the CARES Act. They rejected it again in the phase four negotiations more recently. To be clear, it didn't even make the GOP's wish list. Lawmakers really were not looking at this at all. That seemed like it would be the end of it.
But then, in early August Stephen Moore, a longtime adviser to President Trump stretching back to his first campaign, wrote an op-ed that basically said, "Hey, why don't you just stop collecting payroll taxes using your executive authority and then pressure Congress to forgive this tax debt later." Less than a week later, House and Senate lawmakers from Republicans and Democrats hit an impasse on phase four negotiations. Then, boom. Trump has an excuse to play the hero and deliver some executive action.
On August 8 he signed a couple of memorandums, which were basically executive orders. One of those directed Treasury to use its emergency authority to defer the withholding, deposit, and payment of the employees' share of payroll taxes from September 1 through December 31.
The payroll memo came with very few parameters to it. It's limited to employees who earn less than $4,000 on a biweekly basis. That comes out to about $100,000 a year. It says that deferred payments won't be subject to penalties or interest. It also directs Treasury to come up with ways, maybe through legislation, for the deferred taxes to be forgiven. But I think it's safe to say only Congress can do that.
That's it. That's really all that the memo said. It threw the ball over to Treasury and handed it to them.
Ever since then, it's been radio silence from Treasury. We don't really know how this will work still, at least as of August 26. However, I will add Treasury Secretary Steven Mnuchin did say it would be optional for employers, which suggests that employers have some way of opting in or out of this.
Larry Kudlow said a few weeks ago that it might be essentially de facto forgiven, in the sense that they would potentially stretch out the repayment period. Instead of making the payment due January 1, 2021, they would make it due over a couple of years. I've since learned that there are some practical difficulties associated with that, but we'll see how that plays out.
In the meantime, a wide array of business groups and associations have pretty much concluded that this deferral is a dud. I've seen a lot of accounting firms and coalitions advising their members to not take Trump up on the deferral saying, "It's not worth the headache. If you have a choice, just don't do it."
David Stewart: Is it important that these business groups are discussing opting out of this deferral plan?
Jonathan Curry: That's definitely important because a big part of the political calculus behind this memo was that if all these taxpayers are deferring their taxes, then that puts pressure on Congress to enact legislation that would bail them out to avoid sticking them with a major hardship at the end of the deferral period. Obviously on the flip side of that, if a few top businesses decide to go along with this, then Congress can essentially wash their hands of this and say, "Hey, sorry, taxpayer, you should have known that we hold the power of the purse, not the president." We'll see soon how this starts to play out.
David Stewart: It'll be interesting to watch. Trump was just confirmed as the Republican nominee. He recently unveiled some of his priorities for a second term. What sort of tax policies and goals did we see in that?
Jonathan Curry: He released this 50-point memo of bulletin points. There's not a lot to it, frankly. There's a couple of things on there that are sort of tax items. One is a "Made in America" tax credit, which we haven't really seen any details of. It's been mentioned a few times by officials, but they haven't released any details of what that would be.
Under another section he has something called tax credits for companies that bring back jobs from China specifically. I'm actually not sure if that's the same thing as the "Made in America" tax credit. Again, we'll have to see.
Another item on there is to expand Opportunity Zones. Those were included in the TCJA as one of the big items that Republicans like to point to because it was pretty much the only bipartisan provision in the whole TCJA. That one is aimed at trying to steer investment into lower-income communities while providing tax breaks like capital gains and things like that. But again, these bullet points don't say anything about how they would be expanded. If it's talking about more zones, more generous tax savings, or anything like that.
There's also an item about cutting taxes to boost take home pay and to keep jobs in America. I presume this is income tax rates, but again, we don't know for sure. Trump has talked about at various times a Tax Cuts 2.0 effort. They have talked about cutting tax rates for middle-income taxpayers. We'll see what they come up with with that.
Another item on there is to allow 100 percent expensing for essential industries like pharmaceuticals and robotics who they say are moving back their manufacturing facilities to the United States. Again, this is not fleshed out in any way. We have yet to see how this kind of interacts with the TCJA's existing full expensing provision.
One thing that's notable: It doesn't make any mention of making the expiring TCJA provisions permanent. Most of the business provisions in the TCJA were permanent, but the individual ones were temporary. Most of them are set to expire at the end of 2025. At some point, Republicans and lawmakers will have to reckon with what they want to expand or keep or modify. But, this doesn't say anything about that.
We've also heard some administration officials talk about lowering the capital gains tax rate down to 15 percent. We'll see what they do with that.
David Stewart: Let's turn to the Democratic challenger. Alexis, you've been following this. So, what has Biden proposed in terms of tax policy?
Alexis Gravely: One of Biden's main talking points when he discussed his tax policy is that corporations and the wealthy are going to pay their fair share. He mentioned this when he was expecting his nomination for president and it keeps coming up.
What does that look like? He wants to increase the corporate tax rate from 21 percent to 28 percent. He also wants to increase that top individual income tax rate to 39.6 percent, which is currently at 37 percent. He wants to tax capital gains as ordinary income for those who are earning more than $1 million.
He also has the corporate minimum tax that he wants to establish. We don't have a ton of details about it, but it would be a 15 percent tax on global book income of a $100 million or more. These are just some examples of what he proposed.
He has quite a few proposals actually that are aimed at increasing taxes on corporations and the wealthy. It's not only about these people and corporations paying their fair share as he said, but it also helps to raise revenue for some of his other plans. Some of the taxes that he will increase on wealthier Americans will be used to pay for his health care plan.
For the average American, he said he won't increase taxes for most Americans. In his plan, he has a lot of credit to help people out. Honestly, it's like Oprah: "You get a credit! You get a credit! You get a credit!"
He's proposed expansion to the earned income tax credit, expansions to the child and dependent care tax credit. He wants to make that refundable because it currently isn't. He's got credits for child care, credits for caregivers, credits for renters, and buying homes. This is all just to help support individuals and families in various ways.
David Stewart: Biden recently announced Kamala Harris as his pick for vice president. She had her own presidential run. We've heard some of her tax ideas. Can you tell us a bit about some of her tax proposals and how her stances might influence a Biden administration?
Alexis Gravely: Since Harris was picked as his running mate, we haven't heard a ton about what they would collaborate together about tax policy. But during her presidential campaign, we know that she was considered to be more progressive than Biden. We can see that in the policies that she has proposed.
Broadly, they have very similar ideas: raising taxes on corporations and wealthier Americans and offering support for low- and middle-income Americans. But they tend to differ in some of the ways to accomplish that.
For example, Harris also wants to increase the corporate tax rate. But she would like to see it go back to that pre-TCJA 35 percent, as opposed to Biden who only wants to raise it up to 28 percent. Also during her campaign, she proposed this tax on families making more than $100,000. At the time that was going to be used to pay for her Medicare for All plans. I think it's fair to say that a proposal like this isn't really going to have much influence on the Biden campaign, especially because during the primaries, he actually criticized her for that policy idea.
As far as the TCJA goes, Harris wants to completely get rid of it. Biden is more interested in looking at it and keeping parts of it and repealing other parts that don't benefit low-income and middle-income Americans as he would like.
Some of the areas where they have common ground are Harris also wants to raise the capital gains tax rate. That wasn't something we received a lot of details on during her campaign for president. I'm not quite sure how close she and Biden are on that. But she also wants to raise that top individual income rate to 39.6 percent, as does Biden.
Lastly, she has this credit that she's proposed called the LIFT credit, which stands for Livable Income for Families Today. She actually introduced this as a bill in the Senate last year. Basically, it's a credit for low- and middle-income earners — $3,000 for individuals, $6,000 for couples — to help increase their after-tax income. Again, this is something we don't know where Biden stands, if this is something that he'd be interested in. But some people in the tax community are saying that this could potentially be helpful for helping Americans weather the economic effects that they've seen from the coronavirus pandemic.
David Stewart: Biden was recently confirmed as the Democratic party's nominee at the Democratic National Convention. Did we learn anything during the convention about Biden's tax plans?
Alexis Gravely: During the convention, we didn't learn anything new. We got these broad references to plans that he has released over the time that he's been campaigning for president.
However, after the convention he said in an interview with ABC that he would not raise taxes on anyone making less than $400,000. That stirred up some debate within the tax community on Twitter about whether or not that's actually true. Some people are arguing that as a result of increasing taxes on corporations and wealthy business owners, some of that burden is going to shift down to individuals. If he were elected and these policies were enacted, we'd have to actually see how that distribution would play out.
David Stewart: Now that we've discussed what they've said they'll do, let's talk about some expectations. Jonathan, should Donald Trump win a second term in November, what do we expect to see tax-wise?
Jonathan Curry: I think probably one of the first things we should expect to see is Trump will see this as kind of a vindication of his executive action on the payroll tax memo. I wouldn't be surprised if we see him really press his demand for lawmakers to forgive the deferred payroll taxes that are being pushed back by that memo.
We might also see linked to that a push to forgive the deferred employer share payroll taxes that were part of the CARES Act. I haven't really seen anyone talking about this yet, and it's not really a big priority, but it almost might make sense for them to tie those two together. We'll see if that happens and if anyone really brings that up anytime soon.
I would also expect to see more tax cuts proposed that are framed as coronavirus relief or a stimulus. For example, Trump has also pushed for a pretty robust deduction for meals and entertainment expenses to try to help hotels and restaurants and things like that. A lot of economists have said, "No. That's trying to stimulate the economy and get people to go to restaurants when we're trying to lock them down or quarantine them." But as this continues on, I wouldn't be surprised if he makes it more of a priority.
We also might see Trump feel more emboldened by his reelection. He talked about indexing capital gains to inflation using executive authority. That would be a kind of a legally risky move. It's something that was contemplated quite a number of years ago back in the George H.W. Bush administration, I believe. They decided at that time it wasn't legal.
There've been some scholars more recently who said it's questionable, but they can potentially see a way for it. Others still think it's illegal. But it's been openly contemplated by the White House. It might not be a surprise to see someone who is in Trump's position is saying, "Oh, well, I'm going to go get something done." We'll see on that end.
David Stewart: All right. Alexis. If we see a Biden presidency come January, what do you expect to see from policy and legislation?
Alexis Gravely: As I've said before, Biden has quite a few tax increases in his plan. The economic conditions will really set the tone for when and if those policies would be enacted. His campaign adviser Jared Bernstein has said that if he wins the election in November and takes office in January, and we're still in an economic recession or trying to claw our way back, it's probably not going to be the best time to implement tax increases, even if it's only for corporations and wealthy Americans.
As far as legislation goes, we most likely aren't going to see a big package focused solely on tax policy in the same way that we saw with President Trump and the TCJA. The thing about Biden is that many of his tax proposals are actually just part of larger plans focused on addressing specific issues.
For example, Biden wants to double the global intangible low-taxed income, or GILTI, rate. The rate's currently at 10.5 percent. He wants to up that to 21 percent. That's not something that we're going to see as a part of tax legislation. That's something that's a part of his "Build Back Better" economic plan, which is focused on bolstering domestic manufacturing. He's wanting to use that increase of taxes on foreign-source income as a way to achieve the larger goal of bringing production back to the United States.
Another example of this is his caregiver tax credit. He has proposed credits for childcare and credits for caregivers. Again, that's not something that would be in a tax package. That's something that would be a part of a caregiver package. A lot of these policy ideas that we're looking at in terms of tax are probably going to be implemented in increments instead of all at once.
David Stewart: That leads to my last question about the practical matters of tax policy. What happens if in November we end up with divided government again? In the event of a Trump win, we would look at the Democrats keeping the House. Or in the event of a Biden win, the Republicans keeping the Senate.
Does that change what policies we could expect? Jonathan, why don't we start with the possibility of divided government under a Trump administration.
Jonathan Curry: Frankly, I think there's very few things that Trump wants to get done that Democrats also want to get done. For example, all these issues that come up are quite polarizing.
If you look at the payroll tax cuts, Democrats are viewing this as sort of a mortal threat to the Social Security trust fund and Americans' retirements and things like that. Same thing on capital gains. It's seen as a giveaway to the rich and to businesses and things like that. These are the kinds of things that drive Democrats nuts. I just don't really see a lot of room for compromise or meeting in the middle on that.
They might be game for some bipartisan stuff on Opportunity Zones, but even that kind of seems like a tough sell at this point. There's been quite a few stories that have come out about this program being used in ways where it wasn't really intended to.
If people were investing in certain areas, but it's not actually lifting people out of poverty, it's just saving some money for people that are already going to make investments or things like that. A lot of it is anecdotal, but it's enough to kind of make it a little bit less attractive to a lot of Democrats, including some people like Bernstein, who's a former economic adviser in the Obama administration. He's taking a wait-and-see approach to this. He was one of the initial big backers of Opportunity Zones. We'll see if there's any room for meeting in the middle on that.
Other than that, in the absence of any real legislative way forward, I wouldn't be surprised to see Trump either threaten or actively take steps to do executive action on things like indexing capital gains on inflation. Or contemplating some other things like another payroll tax deferral style memo that requires Congress to cooperate at some point, but at least put pressure on them in the meantime.
David Stewart: Alexis, what are the prospects for divided government under a Biden administration?
Alexis Gravely: We know Republicans are typically opposed to tax increases. I think when those come into play, it could be very difficult to get those. Some of these policies have price tags that Republicans might not be interested in adding to the national debt.
However, one of the things that the Biden campaign has really highlighted throughout this election season, and especially at the Democratic National Convention, is his ability to unite people and how his long career in politics and how his time in the Senate would really serve him well as president. Biden's been on the Hill, he has connections on the Hill, and he knows how some of these things work. So, it's possible that some of these policies that we wouldn't expect to pass a divided Congress could have somewhat of a fighting chance among more moderate Republicans, if Biden is able to utilize some of those skills and connections that he's been touting on the campaign trail. I'm feeling optimistic.
David Stewart: This has all been fascinating. Alexis, Jonathan, thank you for being here.
Alexis Gravely: Yeah, really glad I could come on the show. Thanks.
Jonathan Curry: Of course. It's been my pleasure. Thanks, Dave.