After the election: What’s next in tax

The 2024 elections are nearly upon us, with the fate of the tax world hanging in the balance. Of course, other important issues loom as well, including open borders, crime, inflation, and conflicts in Europe and the Middle East, as well as the style and personality of the candidates themselves. But for tax nerds, these are eclipsed by the positions offered by the candidates on taxation.

The tax landscape is highly dependent on the fate of the election, according to Marc Gerson, a member at Miller & Chevalier and former majority counsel at the House Ways and Means Committee.

“Obviously the fate of the 2017 tax cuts is at stake,” he explained. “But also what happens during the lame duck session is critical. The focal point will be to extend the 2017 provisions which were enacted on a temporary basis. Some have expired, while others will expire at the end of 2025, so it’s safe to say that regardless of the election results, we will see some tax legislation next year. Neither party wants to see higher taxes on all Americans. What is to be determined is the length and scope of any extension and how it will be paid for.”

They also have to pass a budget, he observed: “And regardless of formal requirements, there will be incredible pressure on Congress and the White House to pay for legislation so there will be no increase in the deficit. Some Republicans assert that the tax cuts ‘paid for themselves,’ since revenue increased after enactment of the Tax Cuts and Jobs Act.”

“There are Republicans that take the position that the extension of the TCJA should not have to be paid for because under dynamic scoring they will lead to greater revenue,” Gerson observed. “But some Republicans prefer deficit reduction to tax relief, and some Democrats believe that tax cuts will add to an already overburdened deficit.”

Dynamic scoring assesses the effect of tax legislation not only in terms of its direct effect on the budget, but also the indirect effects of tax on economic growth. It projects a positive or negative effect on jobs, wages, investment, gross domestic product and revenue. 

The reconciliation process allows the passage of the budget without the impediment of a filibuster by the minority party. The post-election “lame duck” Congress will return to Washington November 12. 

“So much depends on the election. If either party has a sweep, they will try to do tax through reconciliation. Then the extreme policies of either party will get tempered down,” said Gerson. “The other thing to keep in mind is that Congress and the White House next year will have immediate ‘must pass’ legislation so they will have to deal with the deficit, government funding and tax law. They really have a full agenda of ‘must pass’ legislation from the beginning of the year. It will be very challenging right from the start.”

Perhaps foremost among that must-pass legislation will be some kind of solution for funding the government (the current arrangement ends December. 20).

“The productivity of the new Congress is dependent on the election results, which may result in a change in control of both the House and the Senate,” said Gerson. “This may result in the delay of any real consideration in the lame duck session. The new Congress will have to deal with the debt limit, government funding, a farm bill and the TCJA tax cuts. Meanwhile, the current continuing resolution expires December 20. There could be disaster-related legislation in the lame duck session, which could involve targeted disaster tax relief and may start the discussion of a 2024 tax bill. And they may pass either an omnibus appropriations bill if they can agree on it, or another continuing resolution bill into the new year.”