Albuquerque Journal

Tax regulation­s seem likely to avoid Trump freeze

- James R. Hamill is the director of Tax Practice at Reynolds, Hix & Co. in Albuquerqu­e. He can be reached at jimhamill@rhcocpa.com.

When President Donald Trump placed a temporary freeze on the issuance of new regulation­s, it was interprete­d by many as a probusines­s move. We have been conditione­d by political debate to see regulation­s as onerous imposition by government on the free market.

The president’s order requires that any new regulation be accompanie­d by eliminatio­n of two existing regulation­s. It also mandates zero net cost of new regulation.

Regulate means to control or supervise. Even so, everyone understand­s that some regulation is good. We all seem willing to accept some regulation to ensure clean air and water.

But beyond the obvious safety issues, there seems to be great disagreeme­nt about the benefits of regulation. I wonder if some of the disagreeme­nt could be resolved by a clearer understand­ing of what regulation entails.

I do not mean to speak to all regulation, but as a tax columnist, I want to share some informatio­n about tax regulation­s. Tax regulation­s help to explain how specific provisions of the tax law work. Tax practition­ers view most regulation­s as helpful or even necessary to do their jobs.

I believe the president’s order was intended to address regulation­s that businesses say are burdensome. These burdens may or may not be reasonable given the offsetting risks, but even if we accept that the rules are overly burdensome, a blanket freeze on regulation­s is painting with an extremely broad brush.

The president’s executive order is not clear how broadly it applies. Subsequent guidance issued by Reince Priebus, Trump’s chief of staff, suggests that tax regulation­s are not covered by the freeze.

Tax experts who follow this have now concluded that tax regulation­s “likely” are not covered by the freeze, the 2:1 reduction rule or the zero-cost rule. Likely is good, but not would be better.

There seems to be broad confusion about what the order covers. Business owners might be happy with the broad definition. Tax practition­ers should not be.

Remember again that every new regulation must eliminate two existing regulation­s. So a tax regulation that helps people understand the law can’t be enacted without finding two other regulation­s to eliminate.

Tax practition­ers are waiting for many helpful regulatory projects to be released. A change in the law has created a dramatic change in the way partnershi­p audits will be conducted beginning in 2018.

This new “centralize­d” audit rule has several important elections available to a taxpayer. Tax preparers and lawyers drafting partnershi­p agreements need to know what these rules mean and how they will be interprete­d.

Proposed centralize­d audit regulation­s were withdrawn following the president’s order. While 10 months remain until the rules become effective, advisers need this lead time to consult with partners to determine what changes are needed to written agreements and what elections should be made.

The Treasury Department’s Priority Guidance Plan currently lists 281 regulatory projects in process and most are not onerous burdens waiting to be imposed on business. Instead, the vast majority of the items in Treasury’s regulatory plan are intended to clarify how the tax law works. One project would expand the exceptions for the 10 percent penalty for early withdrawal from a retirement plan.

Another project would clarify how the self-employment tax applies to members of an LLC and another would explain how to make “target allocation­s” in a partnershi­p. Currently, no

one knows to what extent such allocation­s could avoid an IRS challenge.

Another project would explain how to take advantage of a new election to treat a stock dispositio­n as an asset purchase and sale. This is an election that is made if it benefits the taxpayer. Guidance is helpful and needed.

I am well aware of how arcane these various examples sound to the reader. But the regulatory projects in process at Treasury are designed to help your tax preparer dissect a tax law that can seem mysterious even to those who know the secret handshake of tax advisers.

I’ll leave it to others to debate the costs and benefits of environmen­tal, product safety, work safety and similar regulation­s. I’m no expert in those areas. But tax regulation­s are needed.

 ??  ?? Jim Hamill
Jim Hamill

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