Tax reform postmortem reveals lethal dose of crony capitalism

Tax reform postmortem reveals lethal dose of crony capitalism
© Getty Images

On Wednesday, the House Ways and Means Committee held a hearing regarding the impact of P.L. 115-97, informally referred to as the Tax Cuts and Jobs Act (TCJA) enacted in December 2017.

While Chairman Kevin BradyKevin Patrick BradyOn The Money: House Democrats line up .5T in spending without budget | GOP takes aim at IRS | House Democrat mulls wealth tax Republicans open new line of attack on IRS To address labor shortages, Congress should try a return-to-work bonus MORE (R-Texas) undoubtedly viewed this as an opportunity for a curtain call, TCJA is a poster child for poorly conceived, incredibly complex (even for a tax act) partisan legislation enacted without due deliberation, that will exacerbate the deficit and undoubtedly further drive good jobs and income off-shore.


It also punished blue states like New York, New Jersey and California by capping the itemized deduction for all state taxes at a mere $10,000, but managed to reduce the top individual tax rate from 39.6 percent to 37 percent.


Even Sen. Bob CorkerRobert (Bob) Phillips CorkerCheney set to be face of anti-Trump GOP How leaving Afghanistan cancels our post-9/11 use of force The unflappable Liz Cheney: Why Trump Republicans have struggled to crush her  MORE (R-Tenn.), who voted for TCJA, has expressed regrets when faced with a Congressional Budget Office estimate that TCJA will increase the federal budget deficit by $1.85 trillion in 2018-2028. Sen. Corker stated, "If it ends up costing what has been laid out here, it could well be one of the worst votes I've made."

Another TCJA supporter, Sen. Marco RubioMarco Antonio RubioFive years after the Pulse nightclub massacre the fight for LGBTQ+ rights continues Rubio calls on Biden to 'forcefully' confront Iran over movement of war ships Bipartisan lawmakers want Biden to take tougher action on Nicaragua MORE (R-Fla.), also articulated remorse over TCJA, albeit for a different reason: "They [big corporations with the tax cuts] bought back shares; a few gave out bonuses; there's no evidence whatsoever that the money's been massively poured back into the American worker." 

This latter comment was reinforced by a survey of economists by the National Association for Business Economics, which found that "two-thirds of business economists [indicated that] the 2017 tax law isn't changing their firms' and industries hiring or investment plans."

While there was somewhat widespread belief that the pre-TCJA top corporate statutory rate of 35 percent needed to be reduced, what was the rationale for slashing the rate to 21 percent?

Furthermore, why was untaxed pre-TCJA offshore earnings of U.S. multinationals only taxed at rates of 15.5 percent for cash and cash equivalents and 8 percent for other assets, coupled with the tax being spread over eight years and heavily back-loaded? 

In addition, why has the nation's tax laws moved in the direction of quasi-territoriality, wherein most foreign-sourced dividends received by 10 percent or more domestic corporate shareholders will get 100 percent dividends received deduction, i.e., they pay no federal income tax.

The answer to all three questions is that this was a pay-off to major campaign contributors, where their interests prevailed over those of the nation.

The lost revenue from TCJA will have two deleterious effects to our country. For one, a sizable debt increase, which Fortune indicated, "By 2028, America's government debt burden could explode from this year's $15.5 trillion to a staggering $33 trillion…".

Fortune quotes Moody's Analytics Chief Economist Mark Zandi: "This [debt increase] is almost like climate change. It doesn't do you in this year, or next year, but you'll see the ill effects in a day of reckoning."

The other negative will be future decreases in discretionary spending on items such as social welfare programs, infrastructure and/or national defense.

TCJA created very byzantine carrots and sticks with names like "GILTI" and  "BEAT" to try to temper the movement of income and jobs due to exempting much foreign-sourced earnings from U.S. tax. These are likely to prove ineffective.

They will, however, create opportunities for U.S. tax professionals in finding ways to circumvent undesirable consequences of these provisions for their clients. Tax specialists and lobbyists got another jackpot with the TCJA section creating a 20-percent qualified business income deduction, with its gray and intricate conditions and definitions.

Tax legislation should be enacted in a bipartisan manner, with careful consideration given to the law's effect on the nation as a whole, rather than to the wishes of powerful donors.

Those responsible for TCJA should have paid heed to President John F. Kennedy's inaugural admonition to "ask not what your country can do for you — ask what you can do for your country."  

Philip G. Cohen is an associate professor of taxation at Pace University Lubin School of Business and a retired vice president – tax and general tax counsel at Unilever United States, Inc. The views expressed herein do not necessarily represent those of any organization to which the author is or was associated with.