TaxProf Blog

Editor: Paul L. Caron, Dean
Pepperdine University School of Law

Monday, December 11, 2017

WSJ: Senate Tax Bill Contains 100% Marginal Rate For Some Business Owners

100%Wall Street Journal, The Taxman Cometh: Senate Bill’s Marginal Rates Could Top 100% for Some:

Some high-income business owners could face marginal tax rates exceeding 100% under the Senate’s tax bill, far beyond the listed rates in the Republican plan.

That means a business owner’s next $100 in earnings, under certain circumstances, would require paying more than $100 in additional federal and state taxes.

As lawmakers rush to write the final tax bill over the next week, they already are looking at changes to prevent this from happening. Broadly, House and Senate Republicans are trying to reconcile their bills, looking for ways to pay for eliminating the most contentious proposals. The formal House-Senate conference committee will meet on Wednesday, and GOP lawmakers may unveil an agreement by week’s end.

The possible marginal tax rate of more than 100% results from the combination of tax policies designed to provide benefits to businesses and families but then deny them to the richest people. As income climbs and those breaks phase out, each dollar of income faces regular tax rates and a hidden marginal rate on top of that, in the form of vanishing tax breaks. That structure, if maintained in a final law, would create some of the disincentives to working and to earning business profit that Republicans have long complained about, while opening lucrative avenues for tax avoidance.

As a taxpayer’s income gets much higher and moves out of those phaseout ranges, the marginal tax rates would go down. ...

If the New Jersey lawyer’s stay-at-home spouse wanted a job, the first $100 of the spouse’s wages would require $107.79 in taxes. And the tax rates for similarly situated residents of California and New York City would be even higher, the Tax Foundation found. Analyses by the Tax Policy Center, which is run by a former Obama administration official, find similar results, with federal marginal rates as high as 85%, and those don’t include items such as state taxes, self-employment taxes or the phase-out of child tax credits.

The bill as written would provide incentives for business owners to shift profit across calendar years, move personal expenses inside the business and engage in other economically unproductive maneuvers, said David Gamage, a tax-law professor at Indiana University.

“I would expect a huge tax-gaming response once people fully understand how it works,” said Mr. Gamage, a former Treasury Department official, who said business owners have an easier time engaging in such tax avoidance than salaried employees do. “The payoff for gaming is huge, within the set of people who both face these rates and have flexible enough business structures.”

The analyses “raise a valid concern” that lawmakers are examining, said Julia Lawless, a spokeswoman for the Senate Finance Committee.

Tax, Tax Policy in the Trump Administration | Permalink


Even in well-constructed and carefully considered tax legislation, there are often glitches that require technical corrections. But this legislative "effort" is beyond the pale. Whether you are left, center or right; blue, red, or green; or D or R, we should all be able to agree that this current tax "reform" bill belongs in the garbage can. Start again McConnell/Ryan/Trump. And this time go back and look at how Reagan/O'Neill/Dole did it.

Posted by: Publius Novus | Dec 12, 2017 7:29:40 AM