Your Association is Working for You to Save Your Business Money
The Tax Reform Act of 2017 made meaningful change to the Federal tax code that has helped stimulate our country’s economy. It also created some confusion and unknowns. But your Home Builders Association and other associations have been working hard with the IRS to get you some answers and create the best outcome for your businesses.
IRS to Waive 2018 Withholding Penalties for Most Filers
The Internal Revenue Service has announced that it is waiving the tax penalty for many home builders and other small businesses that pay estimated quarterly taxes but whose 2018 federal income tax withholding and/or estimated tax payments fell short of their total tax liability for the year.
Treasury Issues Final Rule on Pass Through Entities
The Treasury Department has issued final regulations for the 20% pass through entity deduction under the Tax Cuts and Jobs Act of 2017. The final regulations concern the deduction for qualified business income under Section 199A of the Internal Revenue Code. This includes individuals, partnerships, S corporations, trusts, and estates engaged in domestic trades or businesses.
(the following content sourced from the National Association of REALTORS)
IRS Provides Clear Test on How 20% Deduction Applies to Rental Income, Exchanges
The IRS has issued final rules on the 20 percent business income deduction that was part of the 2017 Tax Reform Act. The new rule confirms that the deduction applies to your business income, as a real estate agent or broker, if you operate as a sole proprietor or owner of a partnership, S corporation, or limited liability company. It applies even if your income exceeds a threshold set in the law of $157,500 for single filers and $315,000 for joint filers. In addition, the new rule provides guidance on two other provisions: 1) whether any real estate rental income is eligible for the deduction, and 2) how the deduction applies to properties exchanged under Section 1031.
Eligibility of rental income
Rental property income also can qualify for the new deduction, as long as you can show that your rental operation is part of a trade or business. The IRS has released proposed guidelines that include a bright-line test for showing that rental income rises to the level of a trade or business. Under that safe harbor, you can claim the deduction if your rental activities-which include maintaining and repairing property, collecting rent, paying expenses, and conducting other typical landlord activities-total at least 250 hours a year. If your activity totals less than that, you can still try to take the deduction, but you will have to be prepared to show the IRS that your activity is part of a trade or business.
Eligibility of 1031 like-kind exchanges
Under earlier proposed regulations, if your income was above threshold levels set in the tax law–$157,500 for single filers, $315,000, for joint filers–and you had exchanged one property for another to defer taxes under Sec. 1031, the amount of the new deduction might be reduced because of the swap. NAR and other trade groups reached out to the IRS to change this treatment, and the IRS has made the change. Under the final rules, you can use the unadjusted basis of the depreciable portion of the property to claim at least a partial deduction.
(September 20, 2017) Ever wonder what your Home Builders Association is doing for you in Washington DC and around the country? Below is a report of the issues on which we are engaged:
1. Canadian Softwood Lumber
- The U.S. Department of Commerce imposed a 20% countervailing duty on Canadian lumber imports in April, and added 7% antidumping duties in June.
- In late August, Commerce announced a delay in the final duties to Nov. 18. This will allow more time to negotiate a settlement. Collection of countervailing duties is suspended for now, but antidumping duties will continue to be collected.
- NAHB is meeting with representatives with the Trump Administration and Congress as well as Canadian officials to address home builder concerns regarding price and availability of lumber.
- These meetings are especially important because U.S. consumers cannot participate in trade disputes, although NAHB provided witness testimony during the International Trade Commission hearing on Sept. 12.
- Generally, lumber prices have increased, but that may be partly due to wildfires in the Western U.S. and Canada.
- NAHB is urging U.S. lumber producers to increase production for domestic consumption, and working to identify alternate foreign sources of dimensional lumber.
2. Disaster Response
- In the aftermath of two devastating hurricanes, NAHB is working closely with state and local home builder associations in those areas to help them meet the needs of members affected by the storms.
- We sent out an all-member email with information on how to donate to the recovery effort.
- NAHB issued statements on hurricane-related advocacy. Our leadership conducted media interviews on flood-related topics, including the need for the National Flood Insurance Program (NFIP) reauthorization, building codes, rebuilding efforts and labor shortages.
- We updated our online Disaster Recovery toolkit with new media talking points and safety information for contractors.
- We added resources on hiring contractors and places to donate on our consumer Web page.
- We are creating resources on business continuity; hiring reputable contractors; and best practices for flood damage repair work.
- We will continue to reach out to the affected communities to see how to help in the rebuilding efforts.
- With respect to resiliency, our Resiliency Working Group issued its final report and recommendations in July. Many of the recommendations are related to disaster preparedness, resiliency, recovery and communications.
- The hurricanes have illustrated the importance of disaster response and planning for rebuilding, and the Resiliency Working Group will now help ensure NAHB can be a resource and problem solver after a natural disaster.
3. Electronic Recordkeeping
- The Occupational Safety and Health Administration’s 2015 electronic reporting rule requires certain employers to electronically submit injury and illness data that they are mandated to keep under existing recordkeeping regulations.
- The rule also contains anti-discrimination prohibitions to protect workers who notify an employer of a workrelated injury or illness.
- NAHB has concerns about several elements of the rule, including the requirements for employers to submit records electronically to OSHA that would become publicly available. In January, NAHB and other stakeholders filed a legal challenge.
- On May 5, NAHB and other organizations submitted a petition to the Department of Labor (DOL) seeking a stay of implementation and enforcement of the rule, and requested OSHA re-open the rulemaking.
- In June, OSHA announced it was extending the filing deadline for employers to submit electronic records to December, which would give OSHA more time to review the rule.
4. Federal Flood Risk Management Standard
- In response to the charge led by NAHB and as part of President Trump’s Executive Order to expedite federal approval for infrastructure projects, the Administration revoked Executive Order 13690 and the Federal Flood Risk Management Standard (FFRMS).
- Our advocacy efforts included participating in federal listening sessions and meetings; submitting comment letters to federal agencies; and requesting that President Trump revoke it.
- This standard would have dramatically expanded regulated floodplain areas.
- However, in response to the hurricanes, the Trump Administration may establish its own flood standard.
- If the Administration chooses to do so, NAHB will work with the White House to develop an effective standard that does not place undue regulatory burdens on residential construction projects.
- The H-2B Temporary Non-Agricultural Worker program allows employers who cannot find local labor for short-term or seasonal jobs to fill those positions with temporary foreign workers.
- There is an annual cap of 66,000 on H-2B visas issued in a fiscal year, but that cap excluded workers who had participated in the program within three years.
- That “returning worker exemption” expired in September 2016 and has not been renewed by Congress.
- In May, Congress approved a spending package for the remainder of FY 2017 that included language allowing the Department of Homeland Security (DHS) to raise the statutory cap for 2017 to allow additional visas.
- In July, DHS announced it would make 15,000 more visas available, but only to employers who could demonstrate that their business would suffer “irreparable harm” without H-2B workers.
- The next round of H-2B visas will become available on Oct. 1. NAHB hosted a free webinar to help employers learn if they qualify to apply for H-2B workers and how they can become certified employers under the program.
- With Congress and the Administration focused on immigration enforcement, the prospect of creating a new guest worker program to benefit builders and specialty trades is highly unlikely.
- NAHB continues to advocate for restoration of the returning worker exemption while looking for opportunities to expand and reform the H-2B program.
6. Low-Income Housing Tax Credit (LIHTC)
- On Aug. 1, NAHB Chairman Granger MacDonald testified before the Senate Finance Committee on “America’s Affordable Housing Crisis.” The hearing focused on the LIHTC.
- Chairman MacDonald also discussed how lots and labor shortages, building material price increases and regulations affect housing affordability.
7. National Flood Insurance Program (NFIP)
- The NFIP was extended until Dec. 8 as part of a broader legislative package.
- During NAHB’s Leg Con in June, builders spoke to their congressional delegations about provisions in the House Financial Services Committee’s flood insurance bill that negatively targeted new construction and grandfathered properties.
- NAHB was able to convince the committee’s leadership to remove those provisions.
- After Hurricanes Harvey and Irma, discussions about changing the program were put on hold as policymakers ensured home owners and communities had short-term certainty and financial aid.
- NAHB will work with Congress on long-term legislation that ensures an affordable, available, predictable and financially stable NFIP.
8. Regulatory Reform
- President Trump has made regulatory reform one of his top priorities, and has asked each agency to evaluate existing regulations and identify ones that should be repealed, replaced or modified.
- We have submitted recommendations to the Environmental Protection Agency (EPA), Department of Housing and Urban Development (HUD), Federal Emergency Management Agency (FEMA), National Marine Fisheries Service (NMFS), Fish and Wildlife Services (FWS), Department of Justice (DOJ) and Department of Energy (DOE), and will soon submit feedback to the Army Corps of Engineers.
- NAHB will provide suggestions to DOL, OSHA and others once their notices are published.
- We will review the 2017 Fall Regulatory Plan and Agenda upon its release and determine if our suggestions were incorporated.
- The Small Business Administration (SBA) Office of Advocacy is also collecting input on regulatory reform through a series of nationwide Regulatory Roundtables; NAHB has had good representation at all roundtables to date.
- As part of the Cleveland roundtable, NAHB member George Davis met with SBA officials at one of his construction developments.
- NAHB will continue its outreach to HBAs and members as additional roundtables are announced.
- On August 28, NAHB testified before the SBA’s Regulatory Fairness Board about the enforcement activities of federal agencies, particularly EPA and OSHA.
9. Overtime Rule
- Under a new rule that was set to go into effect Dec. 1, 2016, the Obama Administration doubled the annual salary level used to determine whether an employee qualifies for the professional, administrative and executive exemption to overtime eligibility from $23,660 to $47,476.
- Under the new rule, the salary threshold would also be automatically adjusted every three years.
- NAHB and many other industry groups challenged the rule in federal court.
- We contended that DOL went beyond its authority under the Fair Labor Standards Act to allow the salary limit to automatically be re-set every year. The Administrative Procedures Act requires these updates be made through regular notice and comment periods.
- In a victory for NAHB, a federal judge in Texas issued a preliminary injunction that temporarily barred the implementation of the rule.
- On Aug. 31, the Texas federal court held the rule was invalid and the three-year automatic increase DOL included was similarly unlawful.
- DOL’s appeal of the preliminary injunction is now moot and likely to be dismissed.
10. Smart Market Report
- Preliminary findings from them Green Residential Smart Market Report show that green building activity should increase over the next few years. Approximately 60 percent of surveyed builders expect it to be a significant share of their overall activity by 2022. This is nearly double from 2014, when only 32 percent of firms reported that level of green building.
- Single- and multifamily home builders agree that energy efficiency and healthier indoor environments are key factors in building a green home, and have prioritized these elements in the construction process.
- The Smart Market report found that ENERGY STAR is more popular in the single-family market while LEED and the National Green Building Standard (NGBS) are more popular with multifamily builders.
- The Green Residential Smart Market Report is a biannual report released by NAHB and Dodge Data and Analytics (formerly McGraw Hill). The report reviews the history and future of green home construction in the single-family, multifamily and remodeling sectors.
- NAHB launched an online toolkit in August to help HBAs advocate for programs that provide a clear path to compliance, reduce redundancy and meet water quality goals.
- The toolkit provides simple checklists that compare pros and cons of different regulatory approaches based on climate, geography, and local land use patterns. This data will help our members in conversations with state regulators.
- As part of the toolkit launch, NAHB released A Developer’s Guide to Post-Construction Stormwater Regulation. This report provides a state-by-state breakdown on the top permitting issues affecting builders.
12. Tax Reform
- A team of congressional leaders and Administration officials known as the “Gang of Six” is developing a structure for tax reform, while President Trump is trying to garner nationwide support on the issue.
- House Speaker Paul Ryan intends to move tax reform this fall.
- Before Congress can address tax reform, it must pass a budget resolution to set up the procedural process known as reconciliation. This will allow tax reform to pass the Senate with only 50 votes.
- However, there is growing resistance in the House to passing a budget resolution before members see the Gang of 6’s tax framework. To use the reconciliation process, the House and Senate must pass identical budget resolutions, which will be challenging.
13. Waters of the U.S. (WOTUS)
- On Oct. 11, the U.S. Supreme Court will hear oral arguments on whether the 2015 WOTUS rule should be litigated in federal trial court or the appellate court.
- NAHB has argued that challenges to the WOTUS rule must be first heard at the trial court.
- We need this clarity so we do not have to file two lawsuits when we challenge an EPA Clean Water Act regulation.
- Meanwhile, the EPA plans to use a two-step process to develop a new WOTUS definition.
- In the first step, the EPA has proposed to withdraw the 2015 WOTUS Rule and revert to the status quo. We expect the agency to finalize the withdrawal by early 2018.
- The EPA also plans to develop a new WOTUS rule, and will soon take comments on the proposal.
- NAHB is taking advantage of its unprecedented access to EPA Administrator Scott Pruitt, and is working with the agency on a new rule that is clear and limits jurisdiction of the Clean Water Act consistent with congressional intent.
- In August, NAHB and the Dallas Builders Association hosted a meeting with Administrator Pruitt in Dallas to voice concerns and offer insight about the new rule.
- NAHB and the Colorado Association of Home Builders are planning a similar meeting with Administrator Pruitt in Colorado Springs in October.
- In late October, NAHB will provide recommendations on a revised WOTUS definition at a business-focused in-person listening session at EPA headquarters.
For more information about these or other Federal government affairs issues, contact Michael Dey (email@example.com).
Dear HBA Member:
The prospect of tax reform is becoming a reality, and I expect legislative action to begin in earnest this fall. Given the importance of tax reform to the NAHB membership, we want to make certain we accurately represent your concerns in this debate.
Please participate in an online discussion with your NAHB Leadership on what tax reform means to our industry. Bring your questions and concerns: We will cover business taxes, including the deduction for business interest, homeownership incentives such as the mortgage interest deduction, multifamily tax issues including the Low Income Housing Tax Credit, and provisions affecting remodelers.
We will hold three “Tax Reform and the Housing Industry” web briefings on Monday, Sept. 18. The three 60-minute briefings each cover the same information, so you only need to attend one session. The briefings will take place at 9:30 a.m., 12:30 p.m. and 3:30 p.m, ET.
You must pre-register for this member-only event. Please make certain you are logged into nahb.org as this is members only content.
If you are unable to participate in the live webcasts, the recordings and staff contacts for more information will be posted to nahb.org after the sessions conclude.
This is an important time for the housing industry. Tax reform will shape the course of our livelihoods for the next several decades. We must get it right. Join me at one of the briefings on Sept. 18.
Granger MacDonald, Chairman, National Association of Home Builders