Tax Provisions in the Build Back Better Act

The U.S. House of Representatives on November 19, 2021 passed the “Build Back Better Act,” without a single Republican vote.  With House passage of the bill, the legislation now moves to the Senate, where further changes may be expected. Changes by the Senate would require further House action, given that the House and Senate ultimately must approve the identical version of legislation before sending that legislation to the president.

The tax revenue provisions in the House bill differ in significant respects from the proposals approved by the Ways and Means Committee in September.  Most significantly, the pending House version of the Bill does not include increases in rates—corporate, individual, or capital gains. Those changes were necessary to address concerns raised in the Senate.

Here are some key changes included in the Bill:

SALT deduction cap

The bill would increase the Sec. 164(b) limitation on the deduction for state and local taxes from $10,000 to $80,000 ($40,000 for married taxpayers filing separately and for trusts and estates) but would extend the limitation through 2031.


Net investment income tax

The bill would amend Sec. 1411 to apply the tax to net investment income derived in the ordinary course of a trade or business for taxpayers with taxable income over $400,000 (single filers), $500,000 (married taxpayers filing jointly or surviving spouses) or $250,000 (married taxpayers filing separately).


Excess business losses

The bill would make permanent the Sec. 461 limitation on excess losses of noncorporate taxpayers. The excess business loss (EBL) limitation, codified in Internal Revenue Code section 461(l), was originally created by the Tax Cuts and Jobs Act of 2017 (TCJA). Appling to taxpayers other than corporations, this provision limits the amount of trade or business deductions that can offset nonbusiness income. The limitation for the 2018 tax year was $250,000 (or $500,000 in the case of a joint return), with these threshold amounts indexed for inflation in subsequent years.


High-income surcharge

The bill would create a new Sec. 1A, imposing a surcharge (in addition to any other income tax imposed) on high-income individuals, estates, and trusts. The surcharge tax would equal the sum of 5% of the amount of the taxpayer's AGI that exceeds $10 million ($5 million for married taxpayers filing separately; $200,000 for an estate or trust), plus 3% of the amount of the taxpayer's AGI that exceeds $25 million ($12.5 million for married taxpayers filing separately; $500,000 for an estate or trust).


Electric vehicle tax credits

The bill provides for a refundable income tax credit of up to $8,500 for new qualified plug-in electric drive motor vehicles. The credit would be available for qualified electric vehicles that cost up to $80,000 (for vans, SUVs, and trucks) or $55,000 (for other vehicles). The bill would also provide a credit of up to $7,500 for two- or three-wheeled plug-in electric vehicles. The credit would phase out for taxpayers with AGI over $500,000 (married taxpayers filing jointly) or $250,000 (single taxpayers). A smaller credit would be available for the purchase of qualifying used electric vehicles. The bill also provides a credit for the purchase of certain new electric bicycles.

The bill would provide a credit for any qualified commercial electric vehicle placed in service by a taxpayer. The credit would equal up to 30% of the basis of a fully electric vehicle or 15% of the basis of a hybrid vehicle.


Wash-sale rules

The bill would amend Sec. 1091 to make commodities, foreign currencies, and cryptoassets subject to the wash-sale rules.


15% minimum tax on profits of large corporations

The bill would impose a 15% minimum tax on the profits of corporations that report over $1 billion in profits to shareholders. Any corporation (other than an S corporation, regulated investment company, or real estate investment trust) that for any three-year period has average annual adjusted financial statement income (as defined in new Sec. 56A) over $1 billion and, in the case of corporations with foreign parents, has annual adjusted financial statement income in excess of $100 million, would pay a tax of 15% of its adjusted financial statement income for the year over the amount of its corporate AMT foreign tax credit.


1% surcharge on corporate stock buybacks

The bill would impose a tax equal to 1% of the fair market value of any stock of a corporation that the corporation repurchases during the year, effective for repurchases of stock after Dec. 31, 2021. The provision would apply to any domestic corporation the stock of which is traded on an established securities market.


Limitation on interest expense deduction

The bill would add a new Sec. 163(n) that limits the amount of net interest expense of certain domestic corporations (or foreign corporations engaged in a U.S. trade or business) that are members in an international financial reporting group. The provision limits the interest expense deduction to an "allowable percentage" of 110% of the domestic corporation's net interest expense.


FDII and GILTI changes

The bill would reduce the applicable percentage in Sec. 250(a) for the foreign-derived intangible income (FDII) deduction from 37.5% to 24.8% and the applicable percentage for the global intangible low-taxed income (GILTI) deduction from 50% to 28.5%, resulting in an effective FDII rate of 15.8% and an effective GILTI rate of 15%. The bill would also allow the FDII deduction to be taken into account when determining a net operating loss deduction.

Sec. 951A would be amended to have the GILTI provisions apply on a country-by-country basis, based on controlled foreign corporation taxable units.

Foreign tax credit limitation

The bill would amend Sec. 904 to apply the foreign tax credit limitation on a country-by-country basis, by taxable unit. Taxable units would include the taxpayer corporation itself, each foreign corporation of which the taxpayer is a shareholder, interests held by the taxpayer in a passthrough entity, and any branch of the taxpayer. The bill would also repeal the carryback of the foreign tax credit. The foreign tax credit changes will apply to tax years beginning after Dec. 31, 2022.


Small business stock deduction and high-income taxpayers

The bill would amend Sec. 1202 to disallow the 75% and 100% exclusion of gain from the sale of stock if the taxpayer's AGI is over $400,000 or if the taxpayer is a trust or estate.


The Senate vote is expected to be made in early December.  However, the Bill faces hurdles in the equally split (50-50) Senate, and taxpayers should continually monitor the legislative development.  Republicans are united in their opposition and there are two Democrat Senators, Manchin and Sinema, expressed their concerns that the levels of new government spending could fuel higher inflation and create new welfare entitlements.