Congress continues its march toward the most sweeping overhaul of the tax system in over three decades.
The Senate passed its version of the Tax Cuts and Jobs Act early Saturday morning by a vote of 51-49, with all Democrats and Sen. Bob Corker (R-Tenn.) opposing it.
“It was a bill constructed by the amendment process, which generally makes it more political than policy geared,” says Bob Moss, principal and national director of governmental affairs at accounting firm CohnReznick.
The Senate version retains the low-income housing tax credit (LIHTC) and private-activity bonds (PABs), which are essential for housing production.
However, affordable housing advocates are taking a closer look at a last-minute amendment that was added to the Senate tax bill at the request of Sen. Pat Roberts (R-Kansas). The proposal would provide a mandatory basis boost for LIHTC projects in rural areas. There is already a discretionary boost.
The issue is that the proposed mandatory boost would be paid for by reducing the basis boost on all projects from 30% to 25%. The effective date is also a problem—it applies for buildings placed in service after the date the bill is enacted. That means projects that are in construction that have a 30% basis boost could see a reduction to 25% if they have yet to be placed in service when the bill is signed, says Rick Goldstein, partner at the Nixon Peabody law firm.
Advocates are hoping to get a change on the Roberts’ amendment and to correct any issues that it could cause to LIHTC developments.
“I think they thought they were doing the right thing, but they weren’t,” says Moss. “We were in touch immediately with Roberts’ staff.”
Affordable housing advocates are also very concerned about the Base Erosion and Anti-Abuse Tax provision, which could impact LIHTC investments. The provision could eliminate or reduce foreign-owned banks’ ability to use tax credits to offset certain taxes.
Now it will be up to the House and Senate to reconcile the differences in their bills, which are considerable for the affordable housing industry. The House version retains the LIHTC program, but it repeals PABs, including multifamily housing bonds.
“The process continues to be a roller coaster,” says Goldstein. “It now appears more likely that there will be an actual conference committee to resolve the differences between the House and the Senate. At one point, it looked like the Senate would insist that the House vote up or down on the bill it passed. That could still happen. This is an unfolding drama with a lot of twists and turns.”
Goldstein adds, “While we are cautiously optimistic that the Senate will prevail on PABs, nothing is certain until it’s over.”
The industry continues to put forth its call to action to protect the housing programs.
“We’re rallying the troops around the country to place phone calls to their senators to keep PABs in play,” says Moss. “That’s our number one priority. “
Goldstein concurs that the industry should not let up.
“The message to members of Congress should be to ask them to contact the leadership whether it’s Speaker Ryan, Chairman Brady, Majority Leader McConnell, or Chairman Hatch,” he says. “The message should be to maintain PABs. That’s the major message.”
