Taxes – Donald Marron

A New Solution for Taxing Cryptocurrency Staking

Taxing digital assets poses many tax policy puzzles. So many, in fact, that the Senate Finance Committee recently asked for advice on how to do it.

I have a new solution for one puzzle: how to tax the income people earn by staking crypto tokens. In a staking system, token holders pledge (i.e., stake) their tokens so they can help process and validate blockchain transactions. Stakers thus replace traditional intermediaries like banks or credit card companies. In return, they get rewarded with additional tokens.

A good place to start the puzzle is to ask how we tax similar economic activities. That benchmark is straightforward. Stakers provide a service (validating blockchain transactions) in return for compensation (more tokens). If we want to treat them like other service providers, we should tax them on their net income. Stakers should pay ordinary income taxes on the rewards they receive and get deductions for the expenses they incur.

Staked tokens should generate tax deductions

Some expenses involved in staking, e.g., the costs of running computers, are obvious. But there is also a non-obvious expense: cost recovery. Staked tokens are a type of intangible property used to generate income. Staked tokens should therefore qualify for the same amortization deductions other intangibles, like franchise rights, receive.

Alternatively, policymakers could create a new tax deduction that reflects how the economic capability of staked tokens depreciates over time.

The idea that staked tokens are intangible property worthy of tax deductions may be surprising. People often discuss cryptocurrencies as though they are some sort of financial asset. Not literally a currency for tax purposes, but still financial property.

With rare exceptions, financial assets don’t get amortization or depreciation deductions. Nor should they. People buy and sell them, exchange them for goods and services, offer them as collateral for loans, or simply hold them. But they don’t use them to produce any goods or services.

Staking changes that. The owner gives up their right to use tokens for financial transactions and in return gets to earn rewards by validating blockchain transactions. Staking thus transforms tokens into productive, intangible assets. In tax jargon, tokens are placed in service to produce income.

Bitcoin validates transactions with a proof-of-work mechanism. But many other blockchains—Ethereum and Tezos, for example—do it using proof-of-stake, which requires fewer resources and less electricity.

The opportunity to validate transactions is shared across people based on how many tokens they stake. When they validate transactions correctly, stakers get newly-issued tokens as a reward. But if they validate transactions poorly, they may lose some staked tokens as a penalty. These incentives encourage stakers to operate the decentralized network securely.

Staked tokens are thus the blockchain equivalent of franchise rights or taxi medallions. If you want to serve branded fast food, you need a franchise right. If you want to collect cab fares in New York City, you need a medallion. And if you want to validate transactions on a proof-of-stake blockchain, you need staked tokens.

We have clear rules for cost recovery for franchise rights, taxi medallions, and many other types of intangible property. Under Section 197, taxpayers can amortize the original cost of those intangibles over 15 years.

The simplest way to handle staked tokens would be to treat them the same way. Congress could add staked tokens to the list of Section 197 intangibles. Or the IRS could recognize staked tokens as the blockchain version of a franchise right. Either way, stakers would get amortization on par with other service providers who use intangible property. But only as long as their tokens remain staked. When a person retakes control of their tokens, the deduction would end.

Newly-created tokens compete with existing tokens for staking rewards

You might wonder whether staked tokens deserve this treatment. Does their productive capacity decline over time? The answer is yes. The issuance of new tokens causes staked tokens to depreciate. Each new token can itself be staked to offer validation services. That competition reduces the economic capability of existing tokens.

Suppose a blockchain increases its token supply by 5 percent each year. Tokens that could validate 10 percent of transactions this year might be able to validate only 9.5 percent next year. And only 9 percent the year after. And so on. New staked tokens cause existing staked tokens to gradually become obsolete. Without some unforeseen improvement in market conditions, a person who stakes the same number of tokens each year would see their revenue decline.

Policymakers have the option of looking beyond the rough justice of Section 197 amortization. They could allow deductions that reflect the actual decline in staked tokens’ economic capability. There are some technical details in how you measure this. But the basic idea is simple. If token supply expands 5 percent one year, stakers could get a deduction of 5 percent of the cost of their tokens. If policymakers prefer a depletion-like approach, the deduction could be 5 percent of their staking revenue.

These approaches would be more administratively complex than 15-year amortization. But they would allow deductions to more closely track the depreciation experienced by staked tokens.

Two other approaches have dominated public debate. Traditional tax experts recommend taxing staking rewards as ordinary income at receipt (e.g., here and here). But to my knowledge, they have not suggested options for cost recovery. Senators Lummis and Gillibrand, along with some crypto proponents (e.g., here and here), have recommended taxing staking rewards only when the tokens are eventually sold.

Both approaches have the virtue of administrative simplicity. But neither is consistent with the way we tax other service providers.

If consistency is a goal, policymakers should chart a middle course. Stakers should be taxed on their net income, not their gross income. Stakers should pay ordinary income tax on their staking rewards. And they should get cost-recovery deductions for the staked tokens that made those rewards possible.

This post first appeared on TaxVox, the blog of the Urban-Brookings Tax Policy Center.

If We Give Everybody Cash, Let’s Tax It

Giving people cash is a great way to soften COVID-19’s economic blow. But it’s sparked a classic debate. Should the federal government give money to everyone? Or target it to people with low incomes?

Targeting has the potential to deliver the biggest benefit per dollar spent. But eligibility requirements add complexity and will inevitably screen out some people who need help. Universality is simpler and recognizes that we are all in this together.

Happily, we can combine the best features of both approaches: Let’s give cash to everyone, and then tax it later. By distributing money today, we get the speed and inclusiveness of universality. By taxing it later, we can recapture some of the benefits from those who needed them least.

One approach is simply to tax the assistance just like any other income. A person with little income this year would keep the full government payment of, say, $1,000. But a billionaire in California would net only $500. At tax time next year, Uncle Sam would get $370 back and California would get $130. The billionaire would receive half as much as the person with little income. And states with income taxes would get a much-needed boost in revenues.

Ben Ritz of the Progressive Policy Institute has proposed another approach: structuring the money as a pre-paid tax credit and then clawing back some of it at tax time. The clawback system could be designed to accomplish any distributional and fiscal goal you want. For example, you might phase out the credit entirely for folks earning more than $150,000. Another possibility would be to link the credit amount to some measure of income loss, not just income level, by comparing the income changes across tax years.

Any of these approaches would reduce the fiscal cost of the cash payments and thus, for the same overall cost, allow them to be bigger for those who get them. Taxing the payments as income, for example, might create a 11 percent offset in new federal revenues. (That figure is based on a report Elaine Maag and I did on carbon dividends, an idea for universal payments linked to a carbon tax.) A taxable payment of $1,125 would then have the about same net fiscal cost as an untaxed $1,000 payment. Under Ritz’s proposal, a more aggressive clawback approach could allow even bigger payments for the same overall cost.

The payments described here should not be treated as income in determining eligibility and benefits in safety net programs. They should be treated as income if we were enacting universal payments in normal times. But times are decidedly not normal. There is no reason for these temporary payments to reduce the efficacy of the existing safety net.

I favor targeting assistance to people with low incomes or sudden income loss if it’s easy to do so. There’s clearly more bang per buck in directing aid to those who likely need it most. Australia has already enacted one program along those lines. But if we go with universal payments, let’s make the payments taxable.

Should Congress Use The Income Tax To Discourage Consumer Drug Ads?

Senator Jeanne Shaheen (D-NH) and a score of Democratic cosponsors want to use the tax code to discourage direct-to-consumer advertising by drug companies. Their bill, the End Taxpayer Subsidies for Drug Ads Act, would prohibit firms from taking tax deductions for any consumer advertising of prescription drugs.

Limiting tax deductions is a blunt and arbitrary way of approaching a legitimate concern. Consumer drug ads play an important role in debates about the costs of prescription drugs, the risks of misuse and overuse of some medications, the balance of authority between doctors and patients, the limits of commercial speech, and a host of other issues. For overviews, see here, here, and here.

But the bill is not well crafted to address those issues. The problem starts with the legislation’s name: Allowing drug companies to deduct advertising costs is not a subsidy. Many other deductions are: The charitable deduction in the personal income tax, for example, subsidizes charitable giving. And the mortgage interest deduction subsidizes borrowing to buy a home.

But the business deduction for advertising costs is not a subsidy. Continue reading “Should Congress Use The Income Tax To Discourage Consumer Drug Ads?”

Designing Carbon Dividends

Carbon dividends are the hottest idea in climate policy. A diverse mix of progressive and conservative voices are backing the idea of returning carbon tax revenues to households in the form of regular “dividend” payments. So are a range of businesses and environmental groups. Two weeks ago, six House members—three Democrats and three Republicans—introduced carbon dividend legislation.

Here is the idea: A robust carbon tax would cut emissions of carbon dioxide and other gases that are threatening our climate. It also would indirectly increase taxes on consumers and raise significant revenue. Carbon dividends would distribute that revenue back to households through regular payments, thus softening the financial blow of the tax while still reducing emissions. (Of course, the revenue also could be directed to other purposes.)

While the premise is simple, the details of implementing carbon dividends are complex. Policymakers face a range of philosophical, political, and practical issues. In a new report, How to Design Carbon Dividends, my Tax Policy Center colleague Elaine Maag and I explore those issues. Our work was funded by the Climate Leadership Council, an advocate for carbon dividends (full disclosure: I am a senior research fellow with the organization).

Two distinct philosophic views animate carbon dividend proposals. One sees dividends as shared income from a communal property right. Just as Alaskans share in income from the state’s oil resources, so could Americans share in income from use of atmospheric resources.

The second sees dividends as a way to rebate carbon tax revenues back to the consumers who ultimately pay them.

Though these ideas can be complementary, they have different implications for designing carbon dividends. Continue reading “Designing Carbon Dividends”

Three Things You Should Know about the Buyback Furor

Record stock buybacks—driven in part by the corporate tax changes in the Tax Cuts and Jobs Act (TCJA)—have sparked a media and political furor. Unfortunately, they’ve also created a great deal of confusion. To help elevate the debate, here are three things you should know.

1. Repatriated overseas profits are the main way TCJA is boosting buybacks

By slashing corporate taxes, TCJA will boost after-tax profits and cash flow. Companies will use some of that cash to buy back shares. But that is not the main way TCJA is fueling today’s record buybacks.

The big reason is the “liberation” of around $3 trillion in overseas profits. Our old system taxed the earnings of foreign affiliates only when the domestic parent company made use of them. To avoid that tax, many companies left those earnings in their affiliates. They could reinvest them in their foreign operations or hold them in U.S. financial institutions and securities, but they couldn’t use them for dividends to parent company shareholders or stock buybacks.

By imposing a one-time tax on those accumulated profits, the TCJA freed companies to use the money wherever they wanted, including in the United States. And multinational firms are leaping at the chance. Cisco, for example, says they are repatriating $67 billion and buying back more than $25 billion in stock.

Cisco’s response reflects a broader trend. Repatriated profits will account for two-thirds of this year’s increase in stock buybacks, according to JP Morgan. Stronger earnings, due to both improved before-tax profits and lower taxes, make up only one-third.

2. Buybacks do not mechanically increase stock prices

Buybacks can help shareholders. But it’s not as simple as much commentary suggests. Continue reading “Three Things You Should Know about the Buyback Furor”

How Should Tax Reform Treat Employee Stock and Options?

The tax treatment of employee stock and options raises a classic Goldilocks problem. We want to tax this compensation neither too much or too little. In a recent policy brief, I consider three questions about how to strike that balance.

Do companies get excessive tax deductions for employee stock and options?

This concern rocketed to prominence in 2012 when Facebook went public. Its employees earned billions from their stock options and restricted stock units. The company, in turn, got billions in tax deductions, reducing its income taxes for years.

Those deductions outraged some observers who asked how Facebook could get billions in tax write-offs when its financial statements showed much lower compensation costs. Lawmakers on both sides of the aisle denounced the “stock option loophole” and proposed limiting these deductions.

While there are good reasons for Congress to worry about companies gaming the tax code, this is not one. The tax deductions that companies receive for employee stock and options are, with few exceptions, just like those for cash wages, salaries, and bonuses. Continue reading “How Should Tax Reform Treat Employee Stock and Options?”

Eight Thoughts on Business Tax Reform

On Tuesday, I had the chance to testify before the Senate Finance Committee on business tax reform. Here are my opening remarks. They are a bit on the glum side, emphasizing challenges and constraints lawmakers face. Moving from optimistic rhetoric about tax reform to legislative reality is hard. You can find my full testimony here.

America’s business tax system is needlessly complex and economically harmful. Thoughtful reform can make our tax code simpler. It can boost American competitiveness. It can create better jobs. And it can promote shared prosperity.

But tax reform is hard. Meaningful reforms create winners and losers. And you likely hear more complaints from the latter than praise from the former. I feel your pain. At the risk of adding to it, my testimony makes eight points about business tax reform.

Thoughtful reform can promote economic growth, but we should be realistic about how much.

More and better investment boosts economic activity over time. The largest effects will occur beyond the 10-year budget window. If reform is revenue neutral, revenue raisers may temper future growth. If reform turns into tax cuts, deficits may crowd out private investment. Either way, the boost to near-term growth may be modest. Dynamic scoring will thus play only a small role in paying for tax reform.

The corporate income tax makes our tax system more progressive.

The corporate income tax falls on shareholders, investors more generally, and workers. Economists debate how much each group bears. Workers are the most economically diverse. But they include highly paid executives, professionals, and managers as well as rank-and-file employees. The bulk of the corporate tax burden thus falls on people with high incomes even if workers bear a substantial portion.

Workers would benefit from reforms that encourage more and better investment in the United States.

In the long run, wages, salaries, and benefits depend on worker productivity. Reforms that encourage investment and boost productivity would thus do more to help workers than those that merely increase shareholder profits.

Taxing pass-through business income at preferential rates would inspire new tax avoidance.

When taxpayers can switch from a high tax rate to a lower one, they often do. Kansans did so when their state stopped taxing pass-through income. Professionals use S corporations to avoid payroll taxes. Investment managers convert labor income into long-term capital gains. Congress and the IRS can try to limit tax avoidance. But the cost will be new complexities, arbitrary distinctions, and new administrative burdens.

Capping the top rate on pass-through business income would benefit only high-income people.

To benefit, taxpayers must have qualifying business income and be in a high tax bracket. Creating a complete schedule of pass-through rates could reduce this inequity. But it would expand the pool of taxpayers tempted by tax avoidance.

Taxing pass-through business income at the corporate rate would not create a level playing field.

Pass-through income faces one layer of tax. But corporate income faces two, at the company and again at taxable shareholders. Taxing pass-throughs and corporations at the same rate would favor pass-throughs over corporations. To get true tax parity, you could apply a higher tax rate on pass-through business income. You could levy a new tax on pass-through distributions. Or you could get rid of shareholder taxes.

It is difficult to pay for large cuts in business tax rates by limiting business tax breaks and deductions.

Eliminating all corporate tax expenditures except for deferral, for example, could get the corporate rate down to 26 percent. You could try to go lower by cutting other business deductions, such as interest payments. But deductions lose their value as tax rates fall. To pay for large rate reductions, you will need to raise other taxes or introduce new ones. Options include raising taxes on shareholders, a value-added tax or close variant like the destination-based cash flow tax, or a carbon tax.

Finally, making business tax cuts retroactive to January 1, 2017 would not promote growth.

Retroactive tax cuts would give a windfall to profitable businesses. That does little or nothing to encourage productive investment. Indeed, it could weaken growth by leaving less budget room for more pro-growth reforms. Another downside is that all the benefits would go to shareholders, not workers.

Can Trump Make Mexico Pay for the Wall?

Mexico won’t willingly write the check for Donald Trump’s wall. So the president is hunting for a way to make Mexico pay.

That search isn’t going well.

Last week, press secretary Sean Spicer floated one idea: the destination-based cash flow tax. The DBCFT taxes imports and exempts exports. We import about $50 billion more from Mexico each year than we export. So the DBCFT could raise substantial revenue from trade with Mexico. Maybe Trump could earmark that money to pay for the wall?

Such earmarking sounds superficially plausible. But it has fundamental budget and logic flaws.

The budget problem is that Congress has other plans for that money. The DBCFT is the centerpiece of the House proposal for tax reform. House leaders insist reform will be revenue neutral. Any new money from the DBCFT will offset money lost from cutting business taxes. That leaves nothing for Trump’s wall.

Broader point: You can’t pay for anything with revenue-neutral tax reform (or, for that matter, with revenue-losing “tax relief”).

Trump may be more concerned with messaging than with these budget niceties. So he could still try to rhetorically link the DBCFT to paying for the wall.

But that leads to the logic problem. We run trade deficits with many countries. If the DBCFT makes Mexico pay for the wall, what does it make China pay for? Germany? Japan? Vietnam? And what about countries like Hong Kong, where America has a trade surplus? Are we paying them for something? And what happens when the wall has been paid for? Does Mexico become exempt from the DBCFT? Or does it start paying for something else?

These questions have no sensible answers. The DBCFT treats Mexico like every other nation, so it can’t make Mexico pay for the wall.

Some observers initially thought Spicer was suggesting a new tariff on Mexican imports. Most economists rightly hate that idea and fear it could spark retaliation against American products. And it seems clear that Spicer really meant the DBCFT. But let’s give that interpretation some credit. A tariff, unlike the DBCFT, could raise new revenue specifically from trade with Mexico.

But a tariff still faces a fundamental economics problem. A tariff doesn’t work like Las Vegas. Just because it targets Mexican products doesn’t mean the tax stays there. Instead, businesses will raise prices, passing some tax on to American customers. Consumers would pay more for cars, TVs, and avocados. Businesses would pay more for auto parts, trucks, and telecommunications equipment. Some burdens would decline over time as businesses shift to suppliers outside Mexico. But some shift of the burden to Americans is inevitable. A tariff would thus make American consumers and businesses, not just Mexicans, pay for Trump’s wall. And that’s without any retaliation.

If President Trump wants to target Mexico alone, he needs another strategy. Neither the DBCFT nor a tariff can make Mexico pay for the wall.

Taxing carried interest just right

Hillary Clinton and Donald Trump agree on one thing: Managers of private equity funds should pay ordinary tax rates on their carried interest, not the lower rates that apply to long-term capital gains and dividends. They differ, of course, on what those rates should be. But if we made that change today, managers would pay taxes at effective federal rates of up to 44 percent, rather than the up-to-25 percent rates that apply currently.

I agree. Fund managers should pay ordinary rates on their carried interest. In a new paper, I argue that this is the right approach for a reason distinct from, and in addition to, the conventional concern about wealthy fund managers paying low tax rates. Taxing carried interest as capital gains creates a costly loophole when benefits to managers are not offset by corresponding costs to investors. Such offsets exist when investors are taxable individuals. In that case, carried interest merely transfers the capital gains preference from investors to managers. But there’s no offset when investors are tax-exempt organizations or corporations, neither of which gets a capital gains preference. By transferring their capital gains to the manager, rather than paying in cash, these investors create a capital gains preference that would otherwise not exist. Taxing carried interest as ordinary income eliminates that loophole.

This perspective on the carried interest problem yields a second insight: Current proposals to reform carried interest taxation are incomplete. If carried interest is taxed as ordinary income for managers, the investors who provide that compensation should be able to deduct it from their ordinary income as an investment or business expense. That’s how we treat cash management fees. There is no reason to treat carried interest differently.

To see why this matters, consider a fund—it might be a buyout fund, a venture capital fund, or a syndicate of angel investors—that invests in companies, improves their business prospects, and then sells to other investors. The managers receive a cash management fee and a 20 percent carried interest, their share of the fund’s profits from dividends and capital gains.

If the fund generates $100 in long-term capital gains, managers get $20 and investors get $80. Under current practice, managers pay capital gains taxes, individual investors pay capital gains taxes, and endowments and other tax-exempt organizations pay nothing.

Many reformers, including President Obama, would tax carried interest as labor income while making no changes for investors. Under this partial reform, managers pay labor income rates on their $20, and investors pay capital gains taxes on their $80.

Under my full reform, managers would pay labor income taxes on their carry, as under the Obama plan. Investors, however, would pay capital gains taxes on all $100 of the fund’s gains and then deduct the $20 of carried interest from their ordinary income.

For tax-exempt investors, there is no difference between partial and full reform. They don’t pay taxes, so they only care about their net income, not how the tax system characterizes it. The same is true for corporations, which pay the same tax rates on any income.

But taxable individuals do care. As long as they can use most of their deductions, they would prefer to deduct carried interest against their ordinary income. Better to pay capital gains taxes on $100 and deduct $20 from ordinary income than to just pay capital gains taxes on $80.

Individual investors in these funds are quite well-off, so why would we want to give them a bigger deduction? Two reasons. First, our goal should be a tax system that treats private equity funds neither better nor worse than other ways of structuring investments.

Current practice fails that test. Because of the carried interest loophole I described above, overall fund returns are often under-taxed relative to other forms of investment. Partial reform fixes that problem, but pushes the pendulum slightly too far the other way, over-taxing fund returns when investors are taxable individuals. Full reform gets the balance exactly right.

Second, our goal should be a tax system that treats cash compensation and carried interest equivalently. Current practice again fails, encouraging managers to employ various games to convert cash fees into carried interest. Partial reform fixes that, but again goes slightly too far, making cash more attractive than carry. Full reform treats them identically.

Full reform also solves the most legitimate concern of people who defend current practice. They typically argue that lower tax rates on capital gains reward entrepreneurship, financial risk taking, and sweat equity in new or struggling businesses. And they are right. Love it or hate it (that’s a debate for another day), our tax code provides lower tax rates on capital gains and dividends from creating or improving businesses.

There is no reason those lower rates should not be available for investments made through funds. But partial reform eliminates these lower rates for any gains distributed as carried interest. Full reform solves that problem by crediting all the gains to investors. That’s probably not what many defenders of current practice have in mind. But it does ensure that all capital gains are treated as such.

Managers thus pay labor income taxes, and investors get the usual benefits associated with capital gains. And managers and investors are free to negotiate whatever fund terms are necessary—perhaps including more carried interest—to make their funds viable businesses. This being the tax code, there are some pesky details, especially about how investors can deduct carried interest. But the bottom line is that full reform would tax carried interest just right.

Disclosure: I am currently evaluating whether to invest in an angel syndicate. I have family and friends who manage and invest in private equity funds.

Britain Builds a Better Soda Tax

Britain will soon tax sugary drinks. Whether you love that idea or hate it, you’ve got to give the Brits credit: They’ve designed a better version of the tax than any other government.

Beginning in 2018, the United Kingdom will charge the equivalent of 0.75 cents per ounce for drinks that contain more than 3 teaspoons of sugar in an 8-ounce serving and a full cent per ounce for drinks with more than 5 teaspoons per serving. These tax levels are similar to the penny per ounce that Berkeley, California levies on sugary drinks.

Britain’s innovation is in the tiering. Rather than hit all sugary drinks with the same tax, as Berkeley does, Britain has three levels. Drinks with little sugar aren’t taxed at all, drinks with moderate sugar face one tax rate, and drinks with lots of sugar face a higher one. As a result, many flavored waters will escape any tax, slightly sweet iced teas will face a low tax, and regular soda will usually bear the higher tax.

This three-tier structure will encourage people and businesses to favor lower-sugar drinks over sweeter ones. That’s important because sugar content differs significantly. If you believe sugar is harmful, you should want people not only to cut back on sugary drinks, but to switch to less sugary options. And you’d want businesses to devote product development, marketing, and pricing efforts to lower-sugar options.

Linking the tax to sugar content encourages businesses to do that. Indeed, Britain is delaying the new tax until 2018 to give beverage companies time to avoid or lower the tax by reformulating their products.

Britain’s tiering is far from perfect. Why do the tax rates differ by only a third, when the difference in sugar content is often larger? Why not have more tiers—or even directly tax sugar content? Those are important questions. But they don’t diminish the fact that Britain’s approach makes much more sense than taxing sugary drinks uniformly, as Berkeley (a penny per ounce), Mexico (a peso per liter), and almost all other soda-taxing governments do. Those taxes—and similar ones designed as sales taxes—do nothing to encourage consumers and businesses to favor lower-sugar drinks. (Hungary has a simpler two-tier system; only drinks in the same range as Britain’s upper tier get taxed.)

Soda taxes are at best a limited tool for improving nutrition. Well-designed taxes can discourage consumption of sugary drinks, which clearly contribute to obesity, diabetes, and other ills. But health depends on many factors, not just the amount of sugar one drinks. People may switch to other, tax-free alternatives like juice that also have lots of sugar. Soda taxes are regressive, falling more heavily on lower-income families. And they raise controversial questions about the role of government.

Given those concerns, reasonable people differ over whether these taxes make sense at all. If governments choose to enact them, however, they should target sugar content rather than drink volume. Britain’s tiered tax is a welcome step in that direction.