Planning in the Age of Uncertainty

Quite aside from the Robin-Hood-In-Reverse economic effects of the proposed GOP tax bill, the bill already poses practical difficulties in planning. Take for instance, the proposed change in the tax treatment of alimony that I previously discussed .

Imagine that there is, right now, an ongoing negotiation of a divorce separation agreement. The stronger economic party (generally the husband) puts an offer on the table that is less than optimum for the weaker party (generally the wife). Since the effective date of the change in alimony rules applies for separation agreements entered into after December 31, 2017, the stronger party can credibly say: “Look, take this deal now. It will only get worse for you if you wait since the tax benefit will disappear after December 31. At that point, I can’t offer you as much alimony since the effective rate on the entire economic package, including any amount that I pay you in alimony, will go up.” Thus, assuming two well-informed parties, the proposed bill has already affected the bargaining process since the pressure tactic can have real teeth.

Another example is one that I am facing in my practice. Client intends to lease commercial real property and operate his business out of that property. The lease is supposed to give my client an option to purchase the real estate. The preliminary documents provide that the option was to be fully assignable, but the other side has now raised an objection to the free assignability of the option. However, the ability to freely assign the purchase option takes on greater importance in light of proposed changes under the GOP tax bill.

Under current law, “material participation” in a real estate venture is generally a good thing since it allows otherwise passive losses to offset active income from a business. Under the GOP proposal, the value of material participation is turned on its head because the income from pass-thru entities in which owners don’t materially participate is substantially lower than income from businesses in which they do materially participate. (From a tax policy standpoint the rule change may be a disaster. Daniel Shaviro has shown that the Service’s enforcement of this “new” material participation rule will face some significant practical impediments.  Thus, the tax loss from the provision could, over time, be far greater than now anticipated, since the concept of “material participation” cannot be accurately gauged by an examining revenue agent.)

As a consequence, my client cannot be flexible on this point since he really doesn’t know (i) whether the bill will pass, (ii) if it does pass, the precise details of the new material participation rules, and (iii) what sorts of tax planning issues he will face ten years out as the law under the new rule develops.

So much for simplicity.

5 thoughts on “Planning in the Age of Uncertainty”

  1. "Regime uncertainty is a concept developed by Robert Higgs, that describes a pervasive lack of confidence among investors in their ability to foresee the extent to which future government actions will alter their private-property rights."
    Regime Uncertainty

  2. To be fair, transitional (as opposed to structural) uncertainty applies just as much to progressive proposals, say for a wealth tax, as to reactionary ones. They are part of the cost of doing politics. The objection to the GOP tax bills is that they are terrible policy on any metric but gains to the super-rich.

  3. "Tax Simplification" is a nice title for a proposed legislation, but it's one of those things that simply doesn't mean anything anymore.

    I remember many years ago a Republican cartoon that, though it was disingenuous, was genuinely funny. It was the plan for the new Democratic Party income tax simplification legislation. Picture a simplified form 1040. Line one says "How much did you make?" At the right side, there is a blank to fill in the amount. Line 2 says "Send it in." There is a blank at the right to fill in the amount, with a small-print note below the blank: "Fill in the amount from line 1."

    If you substituted, for the line "Send it in," a line that says "Send in X percent of it," it might gain a lot of favor on both sides of the aisle. The disagreements could thus be vastly simplified. We could forget quarreling about exemptions, deductions, rebates, etc., and focus on one simple question–what's the right percentage. We wouldn't agree on that either, but at least we'd know what we were disagreeing about.

    1. Alas, Mencken's Law. Because rich people and smart accountants. The reasonable answer to "How much did you make?" depends endlessly on the details of how you made it. Otherwise "independent-contractor" drivers who have to pay gas and insurance out of their wages may be making more on paper than an executive who lives in a company-owned dwelling and has a car, driver and entertainment expense account entirely for the company's convenience. Sure, some of that complexity could be pruned, but the vast majority of it came about for a reason.

  4. "How much did you make?" Sounds like a simple question. It is a simple question. The answer is not simple, though.

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