House passes infrastructure bill, advances Build Back Better bill

Authored by Paul Dillon, Michelle Hobbs, Mike Schiavo, Kasey Pittman, Michael Wronsky, Pat Balthazor, Christine Faris, Kathleen Meade, Joe Schlueter, Jim Lawson, Christopher S. Brown, Kevin Kao

The House of Representatives has passed the $1.2 trillion Infrastructure Investment and Jobs Act (the Infrastructure Act), commonly referred to as the bipartisan infrastructure bill. The Infrastructure Act now heads to the White House for signature where it is expected to be signed as soon as President Joe Biden receives it. The House also passed a rule allowing it to bring to the floor its version of the president’s Build Back Better (BBB) agenda. Additional action by the House is not expected before the Congressional Budget Office (CBO) scores the bill, which could take one to two weeks. It is anticipated the CBO score will confirm earlier estimates that the bill is fully paid for by revenue offsets. Assuming that is correct and the House passes the BBB bill, it will then head to the Senate where it faces an uncertain future.

The Infrastructure Act is the largest infrastructure investment in decades. It also contains three tax provisions: the termination of the employee retention credit (ERC) as of Sept. 30, 2021, an interest rate smoothing extension for pension plans, and new reporting requirements for digital assets. Under the new law, the definition of a broker will be expanded to include those who operate trading platforms for cryptocurrency and other digital assets. In addition, brokers will be subject to new reporting requirements for purchases, sales, transfers and transactions involving cryptocurrency.

For a discussion of the tax changes in the Infrastructure Act, see our previous alert.

Build Back Better

The BBB contains major tax change proposals, which you have no doubt read about over recent weeks, including a surtax on millionaires, a corporate minimum tax, changes to the business interest limitation rules, expansion of the net investment income tax, and a variety of other provisions designed to raise revenue in order to fund the bill’s expenditures of roughly $2 trillion.

Notably, several anticipated provisions of the original BBB agenda did not make their way into the final bill, including some hallmarks of President Biden’s domestic agenda. These include corporate and ordinary individual rate changes, a capital gains tax rate increase, the short-lived billionaire tax as well as the step-up in basis rule modifications following a taxpayer’s death, reductions in the estate tax exemption and changes to the grantor trust rules.

The bill could be altered after it proceeds to the Senate, requiring the House to approve any changes before the bill goes to the president’s desk for signature. Unlike the Infrastructure Act, the BBB has received only Democratic support to date. Without bipartisan support, the bill can only pass the Senate using the reconciliation process, which will require the support of all 50 Democratic senators. At this time, Sen. Joe Manchin of West Virginia, arguably the driving force behind reducing the price tag of the BBB from the original cost of $3.5 trillion, has yet to signal his support of the current bill. Consequently, amendments are expected as negotiations continue. Rulings by the Senate parliamentarian as to whether some BBB provisions are eligible for inclusion in a reconciliation bill are also anticipated.  

Provisions not in the final bill

Throughout 2021, there have been multiple versions of the BBB in various formats — House draft bills, Treasury’s Green Book and White House frameworks. While focus is on the current proposed legislation, it is important to enumerate some previously discussed provisions that did not make it into the most recent bill:

• Individual tax rates: No increase to the individual regular or capital gains tax rates. However, as mentioned earlier, there is a surcharge on high-income individuals, trusts and estates.
• Billionaire wealth tax: No “mark to market” requirement for securities of wealthy taxpayers.
• Corporate tax rates: No increase in the regular corporate tax rate. As discussed above, there is a new corporate minimum tax for large companies.
• Section 199A qualified business income deduction: No new limitations on the section 199A deduction.
• Trusts and estates: No changes to the estate tax exemption level and no changes to the step-up in basis of assets at death.
• Grantor trusts: No changes to grantor trust taxation.
• Carried interests: No change in the treatment of or the three-year holding period for carried interests.
• Tax-free conversion from an S corporation to a partnership: The one-time ability to convert an S corporation to a partnership tax-free was not included in the current bill.
• Bank reporting to IRS: No new requirements for banks to report certain account activity to the IRS.
• Child and dependent care tax credit: No extension of the expanded child and dependent care tax credit.

Visit the links below for a high-level overview of the most significant proposed tax changes in the House-passed BBB.